              Case: 13-10668      Date Filed: 09/05/2013   Page: 1 of 15


                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT

                            ________________________

                                  No. 13-10668
                              Non-Argument Calendar
                            ________________________

                           Docket No. 0:12-cv-60682-WPD



LAURANIUS PIERRE,

                                                                  Plaintiff-Appellant,

                                          versus

CITY OF MIRAMAR, FLORIDA, INC.,
a Florida Municipal Corporation,
GEORGE SCHMIDT, et al.,

                                                               Defendants-Appellees,

SHERIFF AL LAMBERTI,
in his official capacity as the Sheriff
of Broward County,

                                                                           Defendant.
                Case: 13-10668        Date Filed: 09/05/2013        Page: 2 of 15


                                ________________________

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

                                      (September 5, 2013)



Before DUBINA, MARTIN, and EDMONDSON, Circuit Judges.



PER CURIAM:



       Laurinus Pierre appeals the district court’s partial dismissal of his second

amended complaint against the City of Miramar, Florida (“City”), 1 George

Schmidt and J.L. Safiy-Stewart (“Defendant Officers”), individually and in their

official capacities as City police officers, and Angela McNeal, individually and in

her official capacity as Deputy Sheriff of Corrections for the Broward County

Sheriff’s Office. 2 Briefly stated, Pierre complains that he was falsely arrested in


1
  Pierre also named as a defendant Keith Dunn, in his official capacity as the City’s Chief of
Police. We treat Pierre’s claims against Dunn as claims against the City. See McMillian v.
Johnson, 88 F.3d 1573, 1576 n.2 (11th Cir. 1996) (“A suit against a public official in his official
capacity is . . . treated as a suit against the local government entity he represents, assuming that
the entity receives notice and an opportunity to respond.”).
2
 Although Sheriff Al Lamberti (who has now been succeeded by Scott Israel) is named as a
Defendant-Appellee in this appeal, Pierre does not challenge the district court’s grant of
Lamberti’s motion to dismiss and asserted no claims against Lamberti in his second amended
complaint.
                                                  2
              Case: 13-10668    Date Filed: 09/05/2013   Page: 3 of 15


violation of the Fourth and Fourteenth Amendments, 42 U.S.C. § 1983, and Florida

state law. Reversible error has been shown; we affirm in part and vacate in part

and remand.

      Pierre’s complaint presents these facts, viewed in the light most favorable to

Pierre. Pierre heard banging on the front door of his home. Fearing that someone

was trying to break in, Pierre grabbed a baseball bat and a shotgun, went outside,

and inspected his yard.

      While outside, Pierre spoke to his neighbor, Randy Joseph, and Joseph’s

minor son. Joseph’s son told Pierre that someone had tried to break into Pierre’s

house. Joseph said that he would call the police to report the attempted break-in.

Pierre returned to his house.

      Shortly thereafter, Officers Schmidt and Safiy-Stewart and at least six other

police officers arrived and surrounded Pierre’s home with their guns drawn. The

officers interviewed Joseph about the attempted break-in, and Joseph gave the

officers Pierre’s cell phone number. The officers then called Pierre and ordered

him to come out of his house with his hands in the air. Pierre complied. Officers

kept their guns pointed at Pierre while he was patted down and searched. Schmidt

asked Pierre if he owned a gun and where it was. An officer then searched Pierre’s

home and seized his shotgun. Defendant Officers arrested Pierre.




                                         3
               Case: 13-10668       Date Filed: 09/05/2013      Page: 4 of 15


       About half an hour after Pierre’s arrest, officers interviewed for the first time

and secured an affidavit from McNeal, an off-duty Broward County corrections

officer who had been visiting the Joseph home. In her affidavit, McNeal said that

she was present when Pierre came out of his house carrying a shotgun and that she

saw Pierre walk down the road with a shotgun in his hand.

       According to Pierre’s complaint, surveillance footage shows that McNeal

was not present at the scene until after Pierre went back inside his house. Pierre

alleges that McNeal falsified her statement to incriminate him falsely for a crime

he did not commit, to give Defendant Officers probable cause for the arrest, and to

advance her own career.

       Pierre was arrested and charged with two misdemeanor offenses: Reckless

Display of Weapon, Fla. Stat. § 790.10, and Open Carrying of Weapon, Fla. Stat. §

790.053. The state later dismissed these charges, and Pierre filed this action. The

district court granted Defendants’ motions to dismiss.3

       We review de novo the district court’s grant of a Rule 12(b)(6) motion to

dismiss, accepting the factual allegations in the complaint as true and construing

them in the light most favorable to the non-moving party. Hill v. White, 321 F.3d

1334, 1335 (11th Cir. 2003). To survive dismissal for failure to state a claim, “a


3
 Because McNeal filed only a partial motion to dismiss, the district court did not dismiss
Pierre’s malicious prosecution claim against McNeal. That claim remains pending in the district
court and is no issue on appeal.
                                               4
              Case: 13-10668      Date Filed: 09/05/2013    Page: 5 of 15


plaintiff’s obligation to provide the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65

(2007) (quotations omitted). 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, 129 S.Ct. 1937, 1949 (2009). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id.



State Law Claims Against City of Miramar:



      Pierre asserted three state law claims against the City: (1) false arrest and

false imprisonment (Count I); (2) negligent hiring or retention (Count III); and (3)

negligent failure to train and supervise (Count IV).



      Count I: False Arrest and False Imprisonment



      The district court dismissed Count I, concluding that probable cause existed

to arrest Pierre. Under Florida law, “[t]he existence of probable cause to arrest is

an affirmative defense to false arrest.” Lewis v. Morgan, 79 So. 3d 926, 928 (Fla.

                                            5
             Case: 13-10668     Date Filed: 09/05/2013   Page: 6 of 15


Dist. Ct. App. 2012). A complaint may be dismissed for failure to state a claim

“when its allegations, on their face, show that an affirmative defense bars recovery

on the claim.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003).

      For purposes of a Florida false arrest claim, “[p]robable cause for arrest

exists where ‘the facts and circumstances known to the arresting officers were

sufficient to cause a reasonably cautious person to believe that the suspect was

guilty of committing a crime.’” Lewis, 79 So. 3d at 929. Under Florida law --

subject to exceptions not at issue here -- a law enforcement officer may make a

warrantless arrest for a misdemeanor only when the misdemeanor is committed “in

the presence of the officer.” Fla. Stat. § 901.15(1). Thus, in determining probable

cause to arrest a person for a misdemeanor, “only the officers’ own observations

will be considered.” See Peterson v. State, 578 So. 2d 749, 750 (Fla. Dist. Ct. App.

1991).

      “[I]nformation that a misdemeanor has occurred in the presence of an officer

[may] be imputed from one officer to another” under the “fellow officer rule.”

State v. Boatman, 901 So. 2d 222, 224 (Fla. Dist. Ct. App. 2005). Briefly stated,

the “fellow officer rule” allows an arresting officer to “assume probable cause to

arrest a suspect based on information supplied by fellow officers.” B.D.K. v. State,

743 So. 2d 1155, 1157 (Fla. Dist. Ct. App. 1999).




                                          6
                Case: 13-10668        Date Filed: 09/05/2013       Page: 7 of 15


       The existence of probable cause to arrest Pierre is not clear on the face of the

complaint. That Defendant Officers personally witnessed none of Pierre’s conduct

seems undisputed. Thus, for probable cause to have existed -- irrespective of when

McNeal first relayed the information set out in her affidavit to Defendant Officers

-- McNeal (as an observer) must have qualified as a “law enforcement officer” for

purposes of section 901.15(1).

       At all times pertinent to this appeal, McNeal was a duly appointed

corrections officer with the Broward County Sheriff’s Office. We cannot say, as a

matter of Florida law, that a correctional officer inherently qualifies as a “law

enforcement officer” as that term is used in section 901.15(1).

       First, the statutory definition of “law enforcement officer,” as referenced in

section 901.15, is separate and distinct from the definition of “correctional officer.”

See Fla. Stat. § 943.10(1), (2); 4 cf. Fla. Stat. § 784.07 (for purposes of the offense

of assault and battery on a law enforcement officer, “law enforcement officer” is

defined expressly to include correctional officers, as defined in section 943.10).

The definitions in section 943.10 focus largely on each kind of officer’s primary

4
  A “law enforcement officer” is defined as “any person who is elected, appointed, or employed
full time by any municipality or the state or any political subdivision thereof; who is vested with
authority to bear arms and make arrests; and whose primary responsibility is the prevention and
detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the
state.” Fla. Stat. § 943.10(1). But a “correctional officer” is defined as “any person who is
appointed or employed full time by the state or any political subdivision thereof, or by any
private entity which has contracted with the state or county, and whose primary responsibility is
the supervision, protection, care, custody, and control, or investigation, of inmates within a
correctional institution . . . .” Fla. Stat. § 943.10(2).
                                                 7
              Case: 13-10668     Date Filed: 09/05/2013     Page: 8 of 15


responsibilities: either the enforcement of laws and the prevention and detection of

crime or the supervision, protection, care, custody, control, and investigation of

inmates. See Fla. Stat. § 943.10(1), (2).

      Based mainly on the defined duties and responsibilities of each kind of

officer, the Attorney General of Florida has twice concluded that law enforcement

officers and correctional officers are different under Florida law. See Op. Att’y

Gen. Fla. 1998-31 (1998) (based on the powers and duties set forth in section

943.10, law enforcement officers are considered “officers” for purposes of the

Florida Constitution’s prohibition on dual officeholding while correctional officers

are not); Op. Att’y Gen. Fla. 1989-62 (1989) (concluding that, because a

correctional officer’s responsibilities are “directed toward the supervision,

protection, and control of inmates” instead of toward the general public,

correctional officers are under no “duty to aid the injured, ill, or distressed in an

emergency as are law enforcement officers.”).

      Given the state’s statutory language, the guidance of the state’s attorney

general, and the absence of decisional authority to the contrary, McNeal seems to

be no “law enforcement officer” for purposes of section 901.15(1). If Pierre’s

conduct was not committed in the presence of a law enforcement officer, the

complaint plausibly alleged that Defendant Officers lacked probable cause under

Florida law to arrest Pierre. The district court erred in dismissing Pierre’s claim

                                            8
              Case: 13-10668     Date Filed: 09/05/2013    Page: 9 of 15


for failure to state a claim. See Cottone, 326 F.3d at 1357. We vacate the district

court’s dismissal of Count I and remand for further proceedings.



      Counts III & IV:      Negligent Hiring and Retention &
                            Negligent Training and Supervision


      In his complaint, Pierre merely recited the elements for the causes of action

for negligent hiring, negligent retention, and negligent training and supervision.

Conclusions are not good enough. See Twombly, 127 S.Ct. at 1964-65. Pierre

alleged no facts supporting his claims that the City failed to conduct an adequate

pre-hire investigation of Defendant Officers, that the City knew or should have

known that Defendant Officers were unfit for their positions, that the City later

became aware or should have become aware of Defendant Officers’ unfitness but

failed to take action, or that the City failed to train or supervise Defendant Officers.

Because Pierre failed to state plausible claims for relief, dismissal was proper. See

Iqbal, 129 S.Ct. at 1949.




                                           9
               Case: 13-10668       Date Filed: 09/05/2013       Page: 10 of 15


42 U.S.C. § 1983 Claims Against the City & Defendant Officers:

       Defendant Officers (Count V):



       Pierre asserted a section 1983 claim against Defendant Officers based on

false arrest and false imprisonment. 5 Because Defendant Officers had probable

cause to arrest Pierre under federal law, Pierre cannot state a claim for relief under

section 1983.6 See Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir.

2004).

       Whether officers have probable cause to arrest depends on the elements of

the alleged crime. Crosby v. Monroe Cnty., 394 F.3d 1328, 1333 (11th Cir. 2004).

Under Florida law, it is a misdemeanor “for any person to openly carry on or about

his or her person any firearm.” Fla. Stat. § 790.053.

       According to Pierre’s complaint, Joseph called the police to report the

attempted break-in and, when the police arrived on the scene, the police

interviewed Joseph about what happened. Pierre makes no allegations about what

5
 Pierre also raised three state law claims against Defendant Officers: (1) false arrest and false
imprisonment (Count I); (2) malicious prosecution (Count II); and (3) intentional infliction of
emotional distress (Count VIII). Because Pierre leaves unchallenged the district court’s decision
not to exercise supplemental jurisdiction over these state law claims, we will not address them on
appeal.
6
 Although the existence of probable cause was not established under Florida law, federal law
does not restrict the probable cause analysis to conduct witnessed in person by law enforcement
officers. See Knight v. Jacobson, 300 F.3d 1272, 1275-76 (11th Cir. 2002) (explaining that the
Fourth Amendment does not require officers to witness a misdemeanor before conducting a
warrantless arrest, even when state law imposes that requirement).
                                               10
              Case: 13-10668     Date Filed: 09/05/2013    Page: 11 of 15


Joseph told the police during his interview. But, in describing his own conduct

that night, Pierre alleged that he left his house with a baseball bat and a shotgun in

pursuit of a potential burglar. While outside, Pierre stopped and spoke with Joseph

and Joseph’s son about the attempted break-in. It is reasonable to infer that, during

his interview with the police, Joseph described his interaction with Pierre,

including that Pierre was carrying a shotgun out of doors. Pierre also told the

officers that he owned a gun, and officers seized his shotgun from his home.

Based on the facts known to Defendant Officers at the time of Pierre’s arrest,

probable cause existed to suspect that Pierre was guilty of violating Fla. Stat. §

790.053. Thus, Pierre cannot state a claim for relief under section 1983 that is

plausible on its face.



      City of Miramar (Count VI):



      To establish the City’s liability under section 1983, Pierre must identify an

official policy or unofficial custom that caused a constitutional injury. See Grech

v. Clayton Cnty., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc). Because Pierre

has failed to allege sufficiently that he suffered a federal constitutional injury,

Pierre cannot assert a section 1983 claim against the City. And, even if Defendant

Officers violated Pierre’s federal constitutional rights -- which we conclude they

                                           11
              Case: 13-10668     Date Filed: 09/05/2013     Page: 12 of 15


did not -- Pierre has still failed to state a claim for municipal liability under section

1983.

        In his complaint, Pierre alleged that the City had a policy or custom of (1)

“failing to enforce the requirement that officers have probable cause for an arrest

before the arrest is made and instead allow[ing] officers to obtain or assert

probable cause after an arrest is made because the victim of the arrest will usually

become frustrated and plead ‘no contest’ to avoid jail time”; (2) “permitting

officers to turn a blind eye to easily discoverable evidence in determining whether

probabl[e] cause exists”; and (3) failing to train or supervise officers.

        Pierre alleged no facts supporting the existence of these purported City

policies. Pierre also alleged no facts demonstrating that the City ratified Defendant

Officers’ alleged conduct. See Garvie v. City of Fort Walton Beach, 366 F.3d

1186, 1189 (11th Cir. 2004) (“For plaintiffs to state a successful § 1983 claim

against a municipality based on a ratification theory, . . . ‘they must demonstrate

that local government policymakers had an opportunity to review the subordinate’s

decision and agreed with both the decision and the decision’s basis . . . .’”).

Dismissal was proper.




                                           12
             Case: 13-10668      Date Filed: 09/05/2013    Page: 13 of 15


Claims Against McNeal:



      Pierre asserted two claims against McNeal: (1) violation of 42 U.S.C. § 1983

(Count VII) and (2) intentional infliction of emotional distress (Count IX).



      Count VII: 42 U.S.C. § 1983



      To state a claim under section 1983, Pierre must show that a person acting

under color of state law deprived him of a right secured by the Constitution. See

Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Pierre does

not assert that McNeal was a state actor by virtue of her employment with Broward

County. Instead, he argues that she was acting under color of state law because she

conspired with Defendant Officers to deprive him of his constitutional rights.

      A private party may be considered a state actor if she conspired with state

officials to commit the alleged constitutional violation. See Dennis v. Sparks, 101

S.Ct. 183, 186-87 (1980). To succeed under this theory, Pierre “must plead in

detail, through reference to material facts, the relationship or nature of the

conspiracy between the state actor(s) and the private persons.” See Harvey v.

Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992).




                                          13
             Case: 13-10668      Date Filed: 09/05/2013    Page: 14 of 15


      Even if one were to assume an underlying violation of federal law, Pierre

failed to establish the existence of a conspiracy between McNeal and Defendant

Officers. Pierre’s conclusory allegations that Safiy-Stewart led McNeal to make

specific statements in her affidavit and that McNeal fabricated her affidavit in part

to give the police probable cause for the arrest do not establish that McNeal was a

state actor for purposes of section 1983. See id.



      Count IX: Intentional Infliction of Emotional Distress



      Under Florida law, “[o]ne who by extreme and outrageous conduct

intentionally or recklessly causes severe emotional distress to another is subject to

liability for such emotional distress . . . .” E. Airlines, Inc. v. King, 557 So.2d 574,

575-76 (Fla. 1990). To qualify as “extreme and outrageous,” defendant’s conduct

must have “been so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Metro. Life Ins. Co. v. McCarson, 467

So.2d 277, 278-79 (Fla. 1985).

      “The standard for outrageous conduct is particularly high in Florida.”

Clemente v. Horne, 707 So. 2d 865, 867 (Fla. Dist. Ct. App. 1998) (quotations

omitted). “It is not enough that the intent is tortious or criminal; it is not enough

                                           14
             Case: 13-10668     Date Filed: 09/05/2013    Page: 15 of 15


that the defendant intended to inflict emotional distress; and it is not enough if the

conduct was characterized by malice or aggravation which would entitle the

plaintiff to punitive damages for another tort.” Id.

      Accepting Pierre’s allegations as true, he failed to allege enough facts to

demonstrate that McNeal’s conduct qualified as “extreme and outrageous” under

Florida law. See e.g., Legrande v. Emmanuel, 889 So. 2d 991, 995 (Fla. Dist. Ct.

App. 2004) (dismissing plaintiff’s claim for intentional infliction of emotional

distress because falsely accusing a minister of a crime was not extreme and

outrageous behavior).

      AFFIRMED IN PART; VACATED IN PART AND REMANDED.




                                          15
