                                                                              [PUBLISH]




                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                            No. 11-13933              JULY 6, 2012
                                      ________________________         JOHN LEY
                                                                        CLERK
                               D.C. Docket No. 9:10-cv-81275-KAM



LARRY D. BUTLER,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellant,

                                             versus

SHERIFF OF PALM BEACH COUNTY,
DORETHEA COLLIER,
individually,

llllllllllllllllllllllllllllllllllllllll                         Defendants - Appellees.

                                     ________________________

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

                                           (July 6, 2012)

Before CARNES, BARKETT, and BLACK, Circuit Judges.
CARNES, Circuit Judge:

       In one of his ballads, Jim Croce warned that there are four things that you

just don’t do: “You don’t tug on Superman’s cape/ You don’t spit into the wind/

You don’t pull the mask off that old Lone Ranger/ And you don’t mess around

with Jim.”1 He could have added a fifth warning to that list: “And you don’t let a

pistol-packing mother catch you naked in her daughter’s closet.”

                                               I.

       It all started with a phone call.2 Nineteen-year-old Uzuri Collier called

Larry Butler, who was of a similar age, and invited him to her house. Butler

responded to the invitation the way most young men over the age of consent

would have—he went. Once Butler was at Uzuri’s house, he and she consented to

watch television for a while. Then they consented to do what young couples alone

in a house have been consenting to do since the memory of man (and woman)

runneth not to the contrary. The record does not disclose how long these two

young people had known each other in the dictionary sense, but that afternoon in

Uzuri’s bedroom they also knew each other in the biblical sense. While doing so,

       1
           Jim Croce, You Don’t Mess Around With Jim (ABC Records 1972).
       2
         Because this is an appeal from a Federal Rule of Civil Procedure 12(b)(6) dismissal, we
draw the facts from the amended complaint, accepting those facts as true and construing them in
the light most favorable to the plaintiff. Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1271 n.4
(11th Cir. 2012).

                                                2
and while clothed in the manner that is customary in such matters, which is to say

not at all, they heard someone coming into the house.

      The record does not tell us how the timing worked out as unfortunately as it

did. It may be that the two young people simply lost track of time, which would

be understandable given the circumstances. Or it may be that Uzuri’s mother,

Dorethea Collier, left work early that day. However it happened, Collier came

close to catching the couple coupling. So close that when they heard her, Butler

had only enough time to dash into the bedroom closet wearing nothing but a look

of surprise.

      Collier was a corrections officer at the Eagle Academy, which is a “boot-

camp facility for minors” run by the Palm Beach County Sheriff’s Office. She was

wearing her uniform and gun belt with pistol and “[u]pon entering the room, she

began demanding that Uzuri explain why she was undressed and what she was

doing.” While talking with her daughter, Collier took off her utility belt and threw

it on the bed. Sometime thereafter—the implication is sooner rather than

later—Collier discovered Butler stark naked in her daughter’s closet. She yelled

at him and punched him one time. Then Collier picked up her utility belt, put it

back on, and drew her gun. She told Butler that if he moved or did not follow her

commands, she would shoot him.

                                         3
      Butler tried to explain that Uzuri had invited him to the house, but Collier

insisted that he must have broken in. She had the still-naked Butler turn around,

she handcuffed him, and she made him get down on his knees. After staying there

“for a prolonged period,” Butler pleaded with Collier that he could not maintain

that position any longer. Collier responded by telling him to bend over or she

would shoot him. She “made numerous threats against Butler, [telling him] that

she would ‘kill him’ if he did not obey her commands.”

      While still holding Butler at gunpoint, Collier called her husband and told

him to come home immediately. After that, she called a supervisor at Eagle

Academy and asked what charges she could bring against Butler for entering the

house and “engaging in sexual relations with her daughter.” The supervisor told

Collier that if Butler had entered without permission he could be charged with

trespassing and rape, but that if he had been invited in, she would have to let him

go. About this time, Collier’s husband arrived at the house, and he “also assaulted

Butler.” In what manner, we are not told.

      Collier continued to hold Butler at gunpoint, threatening to kill him if he did

not follow orders. After Collier’s husband “inquired further” about the naked

man’s identity and determined who he was, Butler was allowed to get dressed and

leave, although Collier kept the gun pointed at him while he was dressing. One

                                         4
can assume that it did not take Butler long to get dressed and get out, but before he

had time to leave Collier “warned him about the consequences of filing charges or

even ‘thinking about’ reporting the incident.” She told Butler that if he reported

what had happened, she “would submit a report to discredit him and would engage

in some ‘creative writing’ if necessary to justify the filing of charges against him

for trespassing on the property.” Despite those threats, Butler eventually reported

the incident to law enforcement. There is no allegation that Collier responded by

submitting a report of her own or by filing trespassing charges against Butler.

                                          II.

      Butler filed a lawsuit in Florida state court against Collier, individually and

in her official capacity as a corrections officer with the Palm Beach County

Sheriff’s Office, and against Ric Bradshaw, the Sheriff of Palm Beach County,

Florida, in his official capacity only. Butler’s complaint claimed that Collier had

violated 42 U.S.C. § 1983 by using “plainly excessive and disproportionate force

on Butler to effect an unlawful and unreasonable search and seizure” (Count II).

His complaint also included a state law claim of “battery/excessive force” against

Collier in her official capacity (Count III), and state law claims against her both

individually and in her official capacity for false imprisonment (Counts IV & V)

and for intentional and negligent infliction of emotional distress (Counts VI–IX).

                                          5
The claim against Sheriff Bradshaw was a derivative one, asserting that he had as

a matter of policy, practice, and custom inadequately trained, disciplined, and

supervised deputies and others under his supervision, including Collier, resulting

in violations of § 1983 (Count I).

       Collier and Bradshaw removed the case to federal district court, see 28

U.S.C. § 1441(a), based on federal question jurisdiction, see id. § 1331, which was

premised on the § 1983 claims. The defendants each filed a motion to dismiss the

complaint. In a written response to the motions to dismiss his §1983 claims,

Butler contended that Collier had acted under color of law by, among other things,

attempting to charge him with a crime, asserting that: “[s]he contacted officials at

the Eagle Academy . . . about what charges she could bring against plaintiff. She

even sought to charge Plaintiff with trespassing but was overridden by her

supervisor.” 3 Because Butler’s arguments against dismissal relied on facts that

were not in the complaint itself, the court dismissed the complaint with leave to

file an amended one.

       Butler filed an amended complaint, asserting the same claims against the

       3
         At the hearing on the motions to dismiss, Butler’s attorney told the district court: “[S]he
sought to arrest him, she detained him, I believe once other officials from the sheriff’s office
arrived.” However, the amended complaint, which was filed thereafter, does not allege, or even
imply, that anyone from the Sheriff’s Office, other than Collier herself, arrived at the house. In
reviewing the dismissal of the amended complaint we are limited to the allegations that it
contains.

                                                 6
defendants, except for the negligent infliction of emotional distress claims

(originally Counts VII & IX), which he had already agreed to dismiss. The

defendants each filed a motion to dismiss the amended complaint. They argued,

among other things, that the allegations still did not show Collier had acted under

color of law.

       The district court concluded that the allegations in the amended complaint

showed no more than Collier acting as a private individual because nothing she

allegedly did to Butler relied on or invoked her authority as a law enforcement

officer. For that reason, the court once again dismissed Butler’s § 1983 claims

under Rule 12(b)(6). Because Butler had been unable to state a federal claim

despite being given an opportunity to amend the complaint, the court concluded

that any further attempts to amend would be futile and made the dismissal with

prejudice. The court declined to exercise supplemental jurisdiction over Butler’s

state law claims, remanding them to state court.4

                                               III.

       “We review de novo the district court’s grant of a motion to dismiss under



       4
        Butler does not contend that the district court abused its discretion in declining to
exercise supplemental jurisdiction over the state law claims and remanding them to state court, if
the court was correct that he failed to state a claim under § 1983. See 28 U.S.C. §§ 1367(c)(3),
1441(c)(2).

                                                7
12(b)(6) for failure to state a claim, accepting the allegations in the complaint as

true and construing them in the light most favorable to the plaintiff.” Ironworkers

Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th Cir. 2011)

(quotation marks omitted). The plaintiff’s “[f]actual allegations must be enough to

raise a right to relief above the speculative level, on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965 (2007) (citations omitted). To

survive a motion to dismiss, the plaintiff must plead “a claim to relief that is

plausible on its face.” Id. at 570, 127 S.Ct. at 1974.

                                          IV.

      Section 1983 does not federalize all torts or other deprivations of rights

committed by a person who is a law enforcement officer or other government

agent. Instead, the statute covers only those deprivations committed “under color

of any statute, ordinance, regulation, custom, or usage, of any State or Territory or

the District of Columbia.” 42 U.S.C. § 1983. That requirement is more concisely

referred to as the “acting under color of state law” element. Almand v. DeKalb

Cnty., Ga., 103 F.3d 1510, 1513 (11th Cir. 1997) (holding that to establish a §

1983 claim, a plaintiff must show that he “was deprived of a federal right by a

person acting under color of state law”). A defendant acts under color of state law

                                           8
when she deprives the plaintiff of a right through the exercise of authority that she

has by virtue of her government office or position.5 Id. The dispositive question

is whether the defendant was exercising the power she possessed based on state

authority or was acting only as a private individual. Id. The Supreme Court has

explained that the “acts of officers in the ambit of their personal pursuits are

plainly excluded” from being under color of law, while the “[a]cts of officers who

undertake to perform their official duties are included whether they hew to the line

of their authority or overstep it.” Screws v. United States, 325 U.S. 91, 111, 65

S.Ct. 1031, 1040 (1945).

       Our decision in Almand (which is controlling authority) and the Fifth

Circuit’s decision in United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991) (which

is persuasive authority), illustrate the line that is drawn in § 1983 cases of this

type. In the Almand case, we considered the conduct of a police officer who

forced his way into a woman’s apartment and raped her. 103 F.3d at 1511–12.

The woman had originally let the officer in “because of his status as a police

officer” and his proffer of information about those responsible for the rape of the

woman’s daughter about a month earlier. Id. at 1514–15. Afterwards, when he


       5
         The terms “under color of state law” and “state action” refer to the same kind of conduct
in the context of a § 1983 claim; an official who has acted under color of state law has engaged
in state action. See id. at 1514 n.7.

                                                9
propositioned her, the woman told the officer to leave and after he did she closed

the door. Id. at 1515. Immediately thereafter, the officer: “forced open the closed

door with such shock that wood broke off the door. Having pushed open the door,

[he] reentered [her] apartment, physically struggled with her, and forcibly raped

her.” Id. at 1512.

      We concluded in Almand that the officer’s conduct in breaking in and

raping the woman was a private act, not accomplished because of power he

possessed under state law, and in that respect “he was no different from any other

ruffian.” Id. at 1515. We explained that “any thug or burglar could have

committed the same violent acts.” Id. For those reasons, we decided that the

officer’s “conduct (if he did the things alleged) was the act of a private citizen and

did not violate the Constitution,” and we concluded that the district court should

have granted summary judgment in his favor on the § 1983 claim. Id.

      The Tarpley case was different. William Tarpley, a deputy sheriff, devised

a plan to assault Kerry Vestal, a man who had engaged in an extramarital affair

with Tarpley’s wife. Tarpley, 945 F.3d at 807. With the help of his faithless wife,

Tarpley planned to lure Vestal to his house for the assault. See id. at 807–08.

While at the sheriff’s station, Tarpley and a fellow deputy, Michael Pena, made

“sap gloves,” which have “rubber hosing filled with metal or lead shot attached to

                                          10
the fingers.” Id. at 808. Tarpley planned to use those weapons to attack Vestal.

See id.

       When the unsuspecting Vestal arrived at Tarpley’s house, the wife pulled

him inside where Tarpley tackled him and repeatedly hit him in the head. Id.

Tarpley then put his service pistol in Vestal’s mouth, and told him that “he was a

sergeant on the police department, that he would and should kill Vestal, and that

he could get away with it because he was a cop.” Id. Tarpley said, “‘I’ll kill you.

I’m a cop. I can.’” Id. The Tarpleys then summoned Deputy Pena to the house,

and Tarpley told Vestal that Pena was “a fellow sergeant from the police

department.” Id. Deputy Pena confirmed to Vestal that Tarpley had shot people in

the past. Id. After the two deputies finally let Vestal go, they followed him in

Pena’s squad car and radioed another officer to do the same. Id. Both squad cars

followed Vestal to the edge of town. Id.

       Faced with a § 1983 claim, Tarpley contended that “he was acting as a

jealous husband, not as a police officer.” Id. at 809. The Fifth Circuit rejected

that contention, holding that there was sufficient evidence for a jury to find that

Tarpley acted under color of law.6 Id. The court reasoned:


       6
        The court was conducting the “under color of law” analysis for the purpose of applying a
criminal statute, 18 U.S.C. § 242. It did not, however, distinguish between the meaning of the
phrase in that statute and its meaning in the context of a § 1983 claim but instead relied on §

                                               11
       Tarpley did more than simply use his service weapon and identify
       himself as a police officer. At several points during his assault of
       Vestal, he claimed to have special authority for his actions by virtue
       of his official status. He claimed that he could kill Vestal because he
       was an officer of the law. Significantly, Tarpley summoned another
       police officer from the sheriff’s station and identified him as a fellow
       officer and ally. The men then proceeded to run Vestal out of town in
       their squad car. The presence of police and the air of official
       authority pervaded the entire incident.

Id.

       Butler relies on the Tarpley decision as persuasive authority, but the present

case is closer to our binding precedent in Almand than it is to Tarpley. As in

Almand, Collier’s conduct, or misconduct, was not accomplished because of her

status as a corrections officer. Just as “any thug or burglar could have committed

the same violent acts” as the officer in Almand, 103 F.3d at 1515, any irate mother

with an anger management problem could have done what Collier did.7


1983 decisions. See Tarpley, 945 F.3d at 808–09.
       7
        Butler’s counsel admitted as much in the hearing on the defendants’ first motions to
dismiss. The court asked:

               Well, let’s assume she never arrested him. She’s just an angry mother
       yelling and screaming at this man, naked man that she finds in her house with her
       daughter and does everything she did other than arrest him and calls the
       authorities. She’s just an angry, very angry woman, would that have been state
       action even though she had a badge and she had handcuffs and she had a gun and
       she had her uniform on?

              Again, assume she pointed the gun at him, she put the handcuffs on him
       and she’s yelling and screaming at him and threatening him but never says you’re
       under arrest and never says I’m calling the police because you committed a crime

                                               12
       This case actually presents a weaker basis for a finding of action under color

of state law than the Almand case did. Unlike the defendant in that case, Collier

did not use her law enforcement position to strike up a relationship with the victim

or to initially gain access to the house where the assault took place. It was

Collier’s house and she walked in just like any private individual returning home

from work. Collier’s discovery of a naked man in her daughter’s closet was not

the result of an official search by a law enforcement officer. When Collier

punched Butler, she was acting as an enraged parent; she was not purporting to

exercise her official authority to subdue a criminal for purposes of an arrest. When

she handcuffed and detained Butler, Collier did not purport to be exercising her

authority to arrest a criminal. When she called her husband, she was acting as a

wife and parent, not as an officer. And when Collier called her place of work, a

boot camp facility for minors, for advice about whether Butler could be charged

with a crime, she did no more than an ordinary citizen could do by simply

requesting information from law enforcement authorities about whether Butler’s

conduct was criminal.


       and never attempts to use the law against him. She’s just using, she’s just being
       an angry person, she just happens to have some of these law enforcement tools
       with her, would that be a state action?

Butler’s counsel answered: “I don’t believe so.”

                                               13
      Although Collier did use the pistol that she wore as an officer, any adult

without a felony record can lawfully possess a firearm (and tens of millions do). A

law enforcement officer who gets into an after-hours dispute with her domestic

partner that tragically escalates into a shooting does not act under color of law

merely because the weapon used is the firearm the officer carries on duty. As for

the handcuffs, the law does not restrict possession of them to law enforcement

officers. In any event, there is no reason to believe that Collier would not have

done, or been able to do, what she did to Butler without her handcuffs. They were

incidental, not essential, to his detention.

      In the Tarpley case, by contrast, the defendant deputy used his position and

authority to assault and intimidate the victim. He planned the assault with another

deputy while at the sheriff’s office. Tarpley, 945 F.3d at 808. He enlisted that

other deputy’s help in carrying out the assault, and he used law enforcement

vehicles to accomplish his goals. Id. During the assault he repeatedly reminded

the victim that he was a law enforcement officer and even told the man that

because he was an officer he could get away with shooting and killing him. Id.

(“He repeated ‘I’ll kill you. I’m a cop. I can.’”). Collier, unlike Tarpley, did not

use her position and authority to plan the detention and assault of the victim; she

did not enlist the aid of another officer in her misconduct; she did not repeatedly

                                           14
remind the victim that she was a law enforcement officer; she did not boast to him

that as an officer she could get away with killing him. The only other person

whose help Collier sought as the events unfolded was her husband, and there is no

allegation that he was a law enforcement officer. When Butler left, Collier did not

follow him in a law enforcement vehicle—there is no allegation that she even had

one—or radio another officer to follow Butler in that other officer’s official

vehicle.

      The allegations are that Collier warned Butler that if he reported what had

happened she would, in effect, lie about it in a report of her own or file charges

against Butler for trespassing on her property. But any private citizen can submit

a report to law enforcement and seek criminal charges against another person. Cf.

Fla. Stat. § 817.49 (providing that it is a misdemeanor to convey “to any law

enforcement officer false information or reports concerning the alleged

commission of any crime under [Florida law], knowing such information or report

to be false, in that no such crime had actually been committed”)

      A § 1983 defendant who abuses the power and authority given to her by the

state acts under color of state law. See Griffin v. City of Opa-Locka, 261 F.3d

1295, 1303 (11th Cir. 2001); United States v. House, No. 10–15912, — F.3d —,

slip op. at 43, 49–50 (11th Cir. June 20, 2012). “What [§ 1983] seeks to prevent is

                                         15
the ‘[m]isuse of power, possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law . . . .’”

Dunwoody Homeowners Ass’n, Inc. v. DeKalb Cnty., Ga., 887 F.2d 1455, 1460

(11th Cir. 1989) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct.

1031, 1043 (1941)). As we have recently had occasion to reiterate, an act is

effected under color of law “if it is effected by a law enforcement officer acting

‘under pretense of law.’” House, No. 10–15912, slip op. at 43 (quoting Screws,

325 U.S. at 111, 65 S.Ct. at 1040).8 There was a misuse of official power and

authority in the Tarpley case where the deputy acted under pretense of law, but not

in this case. As the district court correctly stated: “Collier was an angry parent

who happened to be in uniform, have handcuffs, and a firearm, which she used for

the private ends of assaulting and scaring a young man she caught in bed with her

daughter.”9 What she did to Butler was not “made possible only because [she was]

clothed with the authority of state law.” Dunwoody Homeowners Ass’n, 887 F.2d

at 1460. Any other angry parent with a firearm in the house could have done what

Collier did.

       8
        The House case involved “under color of law” for purposes of a prosecution under 18
U.S.C. § 242 but, as we have already noted, the phrase has the same meaning there as it does in §
1983. See n.6 supra.
       9
       One might technically quibble that Collier did not quite catch Butler “in bed” with her
daughter, but she very nearly did and the district court’s point is nonetheless valid.

                                               16
       The amended complaint and Butler’s briefs leave no doubt that he feels

mistreated, and with what appears to be some justification. If the allegations are

true, Collier’s treatment of Butler was badder than old King Kong and meaner

than a junkyard dog. She might even have acted like the meanest hunk of woman

anybody had ever seen. Still, the fact that the mistreatment was mean does not

mean that the mistreatment was under color of law. Because the alleged

mistreatment of Butler was not inflicted under color of law, the district court

correctly dismissed his § 1983 claims. Butler will have to seek his remedies under

state law and in state court.

       AFFIRMED.10




       10
         Because we conclude that Collier did not act under color of state law, we do not address
Sheriff Bradshaw’s alternative arguments in support of the district court’s judgment granting
both defendants’ motions to dismiss Butler’s § 1983 claims.

                                               17
