Case: 19-12496 Date Filed: 12/10/2019 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12496 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-00779-ODE
MICHAEL PIERCE, MICHELLE PIERCE,
Plaintiffs - Appellees,
versus
CLAYTON COUNTY, GEORGIA, et al.,
Defendants,
RANDY DUANE BRASHEARS, Individually and in his official capacity as Detective employed by Clayton County, BEVERLY CABANISS, PATRICIA PERKINS,
Defendants - Appellants. Case: 19-12496 Date Filed: 12/10/2019 Page: 2 of 9
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(December 10, 2019)
Before MARTIN, FAY, and DUBINA, Circuit Judges.
PER CURIAM:
This is the second time we have considered an appeal in this case. In the
first appeal, Michael Pierce and Michelle Pierce v. Clayton County, Georgia,
Randy Duane Brashears, et al., No. 17-10815 (11th Cir. Nov. 21, 2017), we
reversed the district court’s dismissal of the Pierces’ claim for malicious
prosecution against Detective Brashears, and the district court’s denial of the
Pierces’ motion for leave to amend their complaint. On remand, the Pierces moved
for leave to amend to add two additional defendants, Clayton Police Department
Records Clerks Beverly Cabaniss and Patricia Perkins, to the lawsuit, and they also
filed a Second Amended Complaint adding a state law claim for conversion against
Detective Brashears.
The present appeal is from the district court’s order denying Detective
Brashears qualified immunity on the Pierces’ constitutional claims and denying
him official immunity based on their claim of conversion. Cabaniss and Perkins
appeal the district court’s denial of official immunity to them on the Pierces’ claim 2 Case: 19-12496 Date Filed: 12/10/2019 Page: 3 of 9
of negligent breach of ministerial duty under Georgia law. The Pierces question
whether punitive damages and attorney’s fees are available to them if they prevail
on their 42 U.S.C. § 1983 claim against Detective Brashears, particularly in light of
the district court’s determination that the Pierces’ claims for attorney’s fees and
punitive damages under Georgia law were abandoned because they were not
specifically pled.
I. Qualified Immunity
We review de novo a district court’s denial of a motion for summary
judgment on qualified immunity grounds. Fils v. City of Aventura, 647 F.3d 1272,
1287 (11th Cir. 2011). Thus, like the district court, we “view all evidence and
make any reasonable inferences that might be drawn therefrom in the light most
favorable to the non-moving party,” but “only to the extent supportable by the
record.” Loftus v. Clark-Moore, 690 F.3d 1200, 1203 (11th Cir. 2012). See also
Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). This requirement to
consider facts and reasonable inferences in favor of the plaintiff here “extends to
genuine disputes over material facts.” Penley v. Eslinger, 605 F.3d 843, 848 (11th
Cir. 2010).
“Under the doctrine of qualified immunity, government officials acting
within their discretionary authority are immune from suit unless the official’s
3 Case: 19-12496 Date Filed: 12/10/2019 Page: 4 of 9
conduct violates clearly established federal statutory or constitutional rights of
which a reasonable person would have known.” Keating v. City of Miami, 598
F.3d 753, 762 (11th Cir. 2010) (quoting GJR Invs., Inc. v. City of Escambia, 132
F.3d 1359, 1366 (11th Cir. 1998)). When a defendant establishes that he was
acting within his discretionary authority, as is the case here, the burden shifts to the
plaintiff to show that the facts and inferences drawn in the light most favorable to
them demonstrate a constitutional violation and that the constitutional right at issue
was clearly established at the time of the violation. See Perez v. Suszczynski, 809
F.3d 1213, 1218 (11th Cir. 2016); Loftus, 690 F.3d at 1204.
The Pierces assert a claim for malicious prosecution, contending that
Detective Brashears violated their Fourth Amendment rights by arresting them for
forgery and theft by taking. In our circuit, a claim for malicious prosecution has
two constituent elements. The plaintiff first must show that his Fourth Amendment
right to be free from unreasonable seizures was violated. See Whiting v. Traylor,
85 F.3d 581, 584 (11th Cir. 1996). Next, the plaintiff must prove the common law
elements of a claim for malicious prosecution. Wood v. Kesler, 323 F.3d 872, 881
(11th Cir. 2003). These elements are (1) a criminal prosecution initiated by the
defendant, (2) with malice and without probable cause, (3) that terminated in the
plaintiff’s favor, and (4) caused damage to the plaintiff. Id. at 882. Here, the
4 Case: 19-12496 Date Filed: 12/10/2019 Page: 5 of 9
parties primarily argue whether probable cause existed for the Pierces’ arrests and
whether Detective Brashears acted with malice.
This circuit has held that the Fourth Amendment right to be free from an
unreasonable seizure is violated when an individual is arrested without probable
cause. Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). In
evaluating whether probable cause supported an arrest, the court looks not to what
the defendant subjectively knew, but rather, to whether the facts known to a
defendant could have led a reasonable officer to believe that the plaintiff had
committed the alleged offenses. See Wilkerson v. Seymour, 736 F.3d 974, 977–78
(11th Cir. 2013). Moreover, if the court determines that the defendant lacked
probable cause to arrest the Pierces, he may still be “entitled to qualified immunity
if there was arguable probable cause for the arrest[s].” Durruthy v. Pastor, 351
F.3d 1080, 1089 (11th Cir. 2003) (quoting Jones v. Canon, 174 F.3d 1271, 1283
(11th Cir. 1999)). Arguable probable cause exists “where reasonable officers in
the same circumstances and possessing the same knowledge as the Defendant[]
could have believed that probable cause existed to arrest Plaintiff[s].” Grider, 618
F.3d at 1257 (quoting Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir.
2004)).
5 Case: 19-12496 Date Filed: 12/10/2019 Page: 6 of 9
The district court, upon a close analysis of the elements of the crimes
alleged, determined that the facts proffered by Detective Brashears are insufficient
to establish probable cause, or even arguable probable cause, to arrest the Pierces.
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Case: 19-12496 Date Filed: 12/10/2019 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12496 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-00779-ODE
MICHAEL PIERCE, MICHELLE PIERCE,
Plaintiffs - Appellees,
versus
CLAYTON COUNTY, GEORGIA, et al.,
Defendants,
RANDY DUANE BRASHEARS, Individually and in his official capacity as Detective employed by Clayton County, BEVERLY CABANISS, PATRICIA PERKINS,
Defendants - Appellants. Case: 19-12496 Date Filed: 12/10/2019 Page: 2 of 9
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(December 10, 2019)
Before MARTIN, FAY, and DUBINA, Circuit Judges.
PER CURIAM:
This is the second time we have considered an appeal in this case. In the
first appeal, Michael Pierce and Michelle Pierce v. Clayton County, Georgia,
Randy Duane Brashears, et al., No. 17-10815 (11th Cir. Nov. 21, 2017), we
reversed the district court’s dismissal of the Pierces’ claim for malicious
prosecution against Detective Brashears, and the district court’s denial of the
Pierces’ motion for leave to amend their complaint. On remand, the Pierces moved
for leave to amend to add two additional defendants, Clayton Police Department
Records Clerks Beverly Cabaniss and Patricia Perkins, to the lawsuit, and they also
filed a Second Amended Complaint adding a state law claim for conversion against
Detective Brashears.
The present appeal is from the district court’s order denying Detective
Brashears qualified immunity on the Pierces’ constitutional claims and denying
him official immunity based on their claim of conversion. Cabaniss and Perkins
appeal the district court’s denial of official immunity to them on the Pierces’ claim 2 Case: 19-12496 Date Filed: 12/10/2019 Page: 3 of 9
of negligent breach of ministerial duty under Georgia law. The Pierces question
whether punitive damages and attorney’s fees are available to them if they prevail
on their 42 U.S.C. § 1983 claim against Detective Brashears, particularly in light of
the district court’s determination that the Pierces’ claims for attorney’s fees and
punitive damages under Georgia law were abandoned because they were not
specifically pled.
I. Qualified Immunity
We review de novo a district court’s denial of a motion for summary
judgment on qualified immunity grounds. Fils v. City of Aventura, 647 F.3d 1272,
1287 (11th Cir. 2011). Thus, like the district court, we “view all evidence and
make any reasonable inferences that might be drawn therefrom in the light most
favorable to the non-moving party,” but “only to the extent supportable by the
record.” Loftus v. Clark-Moore, 690 F.3d 1200, 1203 (11th Cir. 2012). See also
Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). This requirement to
consider facts and reasonable inferences in favor of the plaintiff here “extends to
genuine disputes over material facts.” Penley v. Eslinger, 605 F.3d 843, 848 (11th
Cir. 2010).
“Under the doctrine of qualified immunity, government officials acting
within their discretionary authority are immune from suit unless the official’s
3 Case: 19-12496 Date Filed: 12/10/2019 Page: 4 of 9
conduct violates clearly established federal statutory or constitutional rights of
which a reasonable person would have known.” Keating v. City of Miami, 598
F.3d 753, 762 (11th Cir. 2010) (quoting GJR Invs., Inc. v. City of Escambia, 132
F.3d 1359, 1366 (11th Cir. 1998)). When a defendant establishes that he was
acting within his discretionary authority, as is the case here, the burden shifts to the
plaintiff to show that the facts and inferences drawn in the light most favorable to
them demonstrate a constitutional violation and that the constitutional right at issue
was clearly established at the time of the violation. See Perez v. Suszczynski, 809
F.3d 1213, 1218 (11th Cir. 2016); Loftus, 690 F.3d at 1204.
The Pierces assert a claim for malicious prosecution, contending that
Detective Brashears violated their Fourth Amendment rights by arresting them for
forgery and theft by taking. In our circuit, a claim for malicious prosecution has
two constituent elements. The plaintiff first must show that his Fourth Amendment
right to be free from unreasonable seizures was violated. See Whiting v. Traylor,
85 F.3d 581, 584 (11th Cir. 1996). Next, the plaintiff must prove the common law
elements of a claim for malicious prosecution. Wood v. Kesler, 323 F.3d 872, 881
(11th Cir. 2003). These elements are (1) a criminal prosecution initiated by the
defendant, (2) with malice and without probable cause, (3) that terminated in the
plaintiff’s favor, and (4) caused damage to the plaintiff. Id. at 882. Here, the
4 Case: 19-12496 Date Filed: 12/10/2019 Page: 5 of 9
parties primarily argue whether probable cause existed for the Pierces’ arrests and
whether Detective Brashears acted with malice.
This circuit has held that the Fourth Amendment right to be free from an
unreasonable seizure is violated when an individual is arrested without probable
cause. Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). In
evaluating whether probable cause supported an arrest, the court looks not to what
the defendant subjectively knew, but rather, to whether the facts known to a
defendant could have led a reasonable officer to believe that the plaintiff had
committed the alleged offenses. See Wilkerson v. Seymour, 736 F.3d 974, 977–78
(11th Cir. 2013). Moreover, if the court determines that the defendant lacked
probable cause to arrest the Pierces, he may still be “entitled to qualified immunity
if there was arguable probable cause for the arrest[s].” Durruthy v. Pastor, 351
F.3d 1080, 1089 (11th Cir. 2003) (quoting Jones v. Canon, 174 F.3d 1271, 1283
(11th Cir. 1999)). Arguable probable cause exists “where reasonable officers in
the same circumstances and possessing the same knowledge as the Defendant[]
could have believed that probable cause existed to arrest Plaintiff[s].” Grider, 618
F.3d at 1257 (quoting Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir.
2004)).
5 Case: 19-12496 Date Filed: 12/10/2019 Page: 6 of 9
The district court, upon a close analysis of the elements of the crimes
alleged, determined that the facts proffered by Detective Brashears are insufficient
to establish probable cause, or even arguable probable cause, to arrest the Pierces.
Accordingly, the district court denied him qualified immunity on the Pierces’
constitutional claims. Based upon our review of the record, we agree with the
district court’s well-reasoned order and affirm the denial of qualified immunity to
Detective Brashears on the Pierces’ claim of malicious prosecution.
II. Official Immunity for Detective Brashears
The Pierces asserted a claim for conversion in their amended complaint, and
Detective Brashears claims that he is entitled to official immunity on this claim.
The doctrine of official immunity “protects individual public agents from personal
liability for discretionary actions taken within the scope of their official authority,
and done without willfulness, malice, or corruption.” Sommerfield v. Blue Cross &
Blue Shield of Ga., Inc., 235 Ga. App. 375, 376 (1998). Actual malice is described
as “a deliberate intention to do a wrongful act.” Adams v. Hazelwood, 271 Ga.
414, 414–15 (1999).
The district court determined that the Pierces have proffered enough
evidence from which a jury could conclude that Detective Brashears had a
deliberate intention to do wrong and denied him official immunity. Based upon
6 Case: 19-12496 Date Filed: 12/10/2019 Page: 7 of 9
our review of the record and the district court’s well-reasoned analysis, with which
we agree, we affirm the district court’s order denying Detective Brashears official
immunity on the Pierces’ claim for conversion.
III. Official Immunity for Cabaniss and Perkins
In Georgia, “[a] suit against a public officer acting in his or her official
capacity will be barred by official immunity unless the public officer (1)
negligently performed a ministerial duty, or (2) acted with actual malice or an
actual intent to cause injury while performing a discretionary duty.” Happoldt v.
Kutscher, 256 Ga. App. 96, 97–98 (2002). The Pierces do not contend that
Cabaniss and Perkins acted with malice; rather, the Pierces claim that they
negligently performed a ministerial duty in issuing the Pierces an impound release
form without requiring a bill of sale and without requiring documentation such as
registration or title in the seller’s name, as required by Clayton County Police
Department procedures. As the district court found, the parties primarily dispute
whether Cabaniss and Perkins were engaged in a discretionary or ministerial duty.
This is a determination that is made on a case-by-case basis. See Davis v.
Effingham Cty. Bd. of Comm’rs., 328 Ga. App. 579, 584–85 (2014).
We agree with the district court’s determination that these defendants were
engaged in a ministerial duty when they issued the impound release to the Pierces.
7 Case: 19-12496 Date Filed: 12/10/2019 Page: 8 of 9
Under Georgia law, when “there is an established policy requiring an official to
take specified action in a specified situation, the policy creates a ministerial duty
on the part of the official to perform the specified task.” Grammens v. Dollar, 287
Ga. 618, 620 (2010). The policy at issue provides specific procedures to release
impounded vehicles, and one of these requirements is a notarized bill of sale and
documentation such as registration or title in the seller’s name. See Clayton
County Police Department Procedure D31, Plaintiff’s Ex. 3 at Document 91-4.
The district court reasoned that the procedures set forth specific instructions for the
records clerks to follow, and it does not require the clerks to consider any factors
or apply any judgment. As the district court noted, “the records clerks are simply
required to verify certain documentation on the checklist in the Procedures before
issuing a Vehicle Impound Release Form.” (R. Doc. 95, p. 33.) Therefore, we
affirm the district court’s order denying official immunity to these defendants on
the Pierces’ claim of negligent breach of duty under Georgia law.
IV. Conclusion
After reviewing the record, reading the parties’ briefs, and applying our
appropriate standards of review in the present appeal, we affirm the district court’s
denial of summary judgment to Detective Brashears on his claim of qualified
immunity on the Pierces’ malicious prosecution claim and on his claim of official
8 Case: 19-12496 Date Filed: 12/10/2019 Page: 9 of 9
immunity on the Pierces’ conversion claim. We also affirm the district court’s
denial of official immunity to Cabaniss and Perkins on the Pierces’ claim for
negligent breach of duty under Georgia law.
Should the Pierces ultimately prevail on their section 1983 claims, they
should be permitted to reassert their claims for attorney’s fees and costs under 42
U.S.C. § 1988.
AFFIRMED.