         Case: 12-15768    Date Filed: 10/16/2013   Page: 1 of 10


                                                        [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-15768
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:11-cv-02101-VMC-TGW



MARK BRIVIK,

                                                     Plaintiff - Appellant,

                                 versus

CLAUDIA LAW,
Officer,
JOHN MURRAY,
STEVE MURRAY,
JOSEPH RUSSO,
RICHARD ZIMMERMAN,
RONALD CARR,
ANDRE PANET-RAYMOND,
ABRAHAM SMAJOVITS,

                                                     Defendants - Appellees.

                      ________________________

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

                           (October 16, 2013)
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Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

          Mark Brivik appeals the district court’s order granting Officer Claudia

Law’s motion to dismiss for failure to state a claim, as well as the court’s order

dismissing Brivik’s claims against Steve Murray, Richard Zimmerman, and Ronald

Carr (collectively, the co-investors). 1 After careful review, we affirm. 2

                                        I.      BACKGROUND

          Brivik and his co-investors bought real estate to develop. According to

Brivik, the co-investors wanted to back out of the deal because of the economic

downturn, so they concocted false accusations against Brivik, namely that he had

misrepresented the existence of an option to purchase a parcel of property adjacent

to the development when he really only possessed a right of first refusal. The co-

investors met with Officer Claudia Law of the Florida Department of Law

Enforcement, who he alleged performed a reckless investigation based on the false

information the co-investors provided. This investigation led to Brivik’s arrest on

felony charges. He spent 24 days in jail. The charges were later dismissed when

the State Attorney’s Office declined to prosecute.

          Brivik filed suit under 42 U.S.C. § 1983 against Officer Law and the co-

investors, alleging they violated his Fourth Amendment rights by falsely arresting

1
    The other defendants listed in the caption are not a part of this appeal.
2
    Brivik’s attorney’s motion to withdraw as counsel is GRANTED.
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and maliciously prosecuting him. He also alleged state-law claims of false arrest

and malicious prosecution. Officer Law moved to dismiss the claims against her

based on qualified and state-law immunity, and the district court granted the

motion. Brivik then moved for leave to amend his complaint against Officer Law,

but the district court denied the motion, concluding that amendment would be

futile.

          Brivik subsequently filed an amended complaint naming only the co-

investors, which the district court dismissed for failure to state a claim, reasoning

that the co-investors were not state actors and therefore could not be liable under

§ 1983. The district court then declined to exercise supplemental jurisdiction over

Brivik’s state-law claims.

          This is Brivik’s appeal. We first consider the dismissal of the claims against

Officer Law and then analyze the dismissal of the claims against the co-investors.

                       II.   CLAIMS AGAINST OFFICER LAW

A.        QUALIFIED AND STATE-LAW IMMUNITY

          Brivik first contends that the district court improperly dismissed his claims

against Officer Law. He asserts that Officer Law was not entitled to qualified

immunity because she lacked arguable probable cause to justify Brivik’s arrest.

“We review a district court’s grant of a motion to dismiss based on qualified

immunity de novo and accept well-pleaded allegations as true, construing facts in


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the light most favorable to the plaintiff[].” 3 Collier v. Dickinson, 477 F.3d 1306,

1308 (11th Cir. 2007). We may also consider documents attached to the motion to

dismiss that are “(1) central to the plaintiff’s claim and (2) undisputed.” Day v.

Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). To be immune from § 1983 false-

arrest and malicious-prosecution claims, an officer need only demonstrate that she

acted with arguable probable cause. Montoute v. Carr, 114 F.3d 181, 184 (11th

Cir. 1997). “Arguable probable cause exists where reasonable officers in the same

circumstances and possessing the same knowledge as the Defendants could have

believed that probable cause existed to arrest [the] Plaintiff.” Brown v. City of

Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010) (internal quotation marks

omitted).

       Upon reviewing the complaint and Officer Law’s arrest affidavit attached to

her motion to dismiss, we hold that the district court properly granted Officer

Law’s motion to dismiss. Brivik alleged Officer Law performed a reckless

investigation that ultimately led to his wrongful arrest and incarceration. But this

conclusory allegation is insufficient to demonstrate that Officer Law lacked

arguable probable cause, particularly in light of Officer Law’s affidavit in support

of Brivik’s arrest warrant, which she attached to her motion to dismiss. See
3
  Steve Murray’s motion to strike the portions of Brivik’s brief that cite to evidence not
considered below is DENIED. But because the district court disposed of all of Brivik’s claims at
the motion to dismiss stage, we consider only the pleadings and Officer Law’s arrest affidavit,
which is both central to Brivik’s claims and referenced in his complaint. See Starship Enters. of
Atlanta, Inc. v. Coweta Cnty., Ga., 708 F.3d 1243, 1252 n.13 (11th Cir. 2013).
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a court must accept

as true all of the allegations contained in a complaint is inapplicable to legal

conclusions.”); see also Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir.

2007) (“[W]hen the exhibits [attached to a pleading] contradict the general and

conclusory allegations of the pleading, the exhibits govern.”). Although the Fourth

Amendment “prohibits a police officer from knowingly making false statements in

an arrest affidavit about the probable cause for an arrest,” Holmes v. Kucynda, 321

F.3d 1069, 1084 (11th Cir. 2003) (internal quotation marks omitted), Brivik

pleaded no facts indicating that Officer Law knew statements in the affidavit she

filed to procure Brivik’s arrest were false. Indeed, the affidavit reveals that Officer

Law conducted an independent investigation and based her decision to pursue

Brivik’s arrest on sworn statements from the co-investors indicating that Brivik

falsely represented he had an option to purchase a piece of property they deemed

critical to the investment’s success. She also consulted with an attorney familiar

with securities law who indicated that, in his opinion, the investment Brivik

offered the co-investors qualified as a security under Florida law that was required

to be registered. And Officer Law’s investigation revealed Brivik had not

registered it. From this evidence, a reasonable officer could have concluded that

Brivik violated Fla. Stat. § 517.07(1), which makes it unlawful “for any person to

sell or offer to sell a security . . . unless the security is exempt . . . or is registered.”


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Hence, Officer Law had arguable probable cause to arrest Brivik, and the district

court properly granted her motion to dismiss the § 1983 claims on qualified

immunity grounds. See Montoute, 114 F.3d at 184.

       Brivik further argues that the district court improperly concluded that

Officer Law was immune under Florida law. But in Florida, police officers are

immune from suit unless they “acted in bad faith or with malicious purpose or in a

manner exhibiting wanton and willful disregard of human rights, safety, or

property.” Fla. Stat. § 768.28(9)(a). Brivik’s allegation that Officer Law acted

maliciously and in bad faith is conclusory and therefore insufficient to survive a

motion to dismiss. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.”).

B.     MOTION FOR LEAVE TO AMEND THE COMPLAINT

       Brivik also contends that the district court improperly denied his motion for

leave to amend his allegations against Officer Law. Generally, we review de novo

the district court’s denial of a motion to amend as futile. Hollywood Mobile

Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1264 (11th Cir. 2011). We

do not have occasion to consider whether Brivik’s amendment would be futile,

however, because he did not move for leave to amend until after the district court

granted Officer Law’s motion to dismiss and after the deadline to do so in the


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district court’s scheduling order. And he has not argued, either in this court or

before the district court, that he had good cause for his failure to move for leave to

amend earlier. See S. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241

(11th Cir. 2009) (“A plaintiff seeking leave to amend [his] complaint after the

deadline designated in a scheduling order must demonstrate ‘good cause’ under

Fed. R. Civ. P. 16(b).”). That is especially problematic because he was on notice

of the deficiencies in his complaint before the deadline expired as a result of

Officer Law’s motion to dismiss. Crucially, Brivik offers no explanation as to why

the newly-pleaded facts were unavailable to him prior to the scheduling-order

deadline. See Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998)

(noting that the “good cause standard precludes modification unless the schedule

cannot be met despite the diligence of the party seeking the extension” (internal

quotation marks omitted)). The district court therefore properly denied Brivik’s

motion for leave to amend.

                  III.   CLAIMS AGAINST THE CO-INVESTORS

      Brivik next contends that the district court erred in dismissing his § 1983

claims against the co-investors. Brivik’s amended complaint against the co-

investors alleged that they “engaged in joint action” and “in a reckless campaign”

to arrest and prosecute Brivik. Brivik also alleged, in the alternative, that the co-

investors and Law conspired, acted in concert, or reached an understanding to


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generate false accusations against Brivik. The district court dismissed the

complaint against the co-investors, concluding that Brivik failed to state a claim

upon which relief may be granted because he did not plead facts sufficient to show

that the co-investors were state actors. We review this conclusion de novo.

Thompson v. RelationServe Media, Inc., 610 F.3d 628, 633 (11th Cir. 2010).

      “To obtain relief under § 1983, [the plaintiff] must show that he was

deprived of a federal right by a person acting under color of state law.” Patrick v.

Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). Private parties are only

rarely deemed to be state actors under § 1983, and we will find that a private party

is a state actor only if one of three conditions is met:

             (1) the State has coerced or at least significantly encouraged the
             action alleged to violate the Constitution . . . ; (2) the private
             parties performed a public function that was traditionally the
             exclusive prerogative of the State . . . ; or (3) the State had so
             far insinuated itself into a position of interdependence with the
             private parties that it was a joint participant in the
             enterprise . . . .

Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001)

(alterations and internal quotation marks omitted). Brivik concedes that only the

third circumstance might be implicated in this case. To establish that a private

party is a state actor in this scenario, “the governmental body and private party

must be intertwined in a symbiotic relationship [that] involve[s] the specific

conduct of which the plaintiff complains.” Focus on the Family v. Pinellas


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Suncoast Transit Auth., 344 F.3d 1263, 1278 (11th Cir. 2003) (internal quotation

marks omitted).

       On appeal, Brivik contends that he sufficiently pleaded joint action. But he

points to nothing in his complaint to indicate that the co-investors and Officer Law

acted together to falsify facts leading to Brivik’s arrest. Rather, he argues only that

the co-investors “knowingly and deliberately falsified information during their

meetings with Claudia Law.” This is insufficient to show that the co-investors

were state actors under § 1983. See id.; see also Nat’l Broad. Co., Inc. v.

Commc’ns Workers of Am., 860 F.2d 1022, 1025 n.4 (11th Cir. 1988) (“[P]rivate

conduct is fairly attributable [to the State] only when the state has had some

affirmative role . . . in the particular conduct underlying a claimant’s civil rights

grievance.” (emphasis added) (internal quotation marks omitted)). Hence, the

district court properly dismissed Brivik’s claims against the co-investors.4

                                      IV.    CONCLUSION

       For the above reasons, we find no error in the district court’s dismissal of

Brivik’s claims against both Officer Law and the co-investors. The judgment of

the district court is

4
  Brivik does not argue that, if the district court properly dismissed his § 1983 claims, it abused
its discretion by declining to exercise supplemental jurisdiction over his state-law claims. He has
therefore abandoned this argument. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1330 (11th Cir. 2004) (“[A] legal claim or argument that has not been briefed before the court is
deemed abandoned and its merits will not be addressed.”); see also 28 U.S.C. § 1367(c)(3)
(providing that a district court may decline to exercise supplemental jurisdiction over state-law
claims where it has “dismissed all claims over which it has original jurisdiction”).
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AFFIRMED.




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