                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                No. 11-10849                 AUG 30, 2011
                                                              JOHN LEY
                            Non-Argument Calendar               CLERK
                          ________________________

                      D.C. Docket No. 2:10-cv-14225-DLG

SIEGFRIED G. CHRISTMAN,

                                                             Plaintiff-Appellant,

                                     versus

RALPH HOLMES,
In his Personal Capacity Police Officer, Fort Pierce Police Dept.,
ALFONSO JOHNSON,
In his Personal Capacity, President and Registered Agent William & Johnson Inc.,
HARRY W. BUCKLEY,
President of Jackson Hewitt Tax Services, Inc.,

                                                          Defendants-Appellees,

MICHAEL C. YERINGTON,
In his Personal Capacity, President and CEO Jackson Hewitt Inc.,

                                                                     Defendant.
                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________
                               (August 30, 2011)
Before HULL, WILSON and BLACK, Circuit Judges.

PER CURIAM:

       Siegfried Christman appeals pro se the district court’s dismissal of his 42

U.S.C. § 1983 civil rights complaint for failure to state a claim for relief, pursuant

to Federal Rule of Civil Procedure 12(b)(6). After review, we affirm.1

       In his pro se amended complaint, Christman alleged that: (1) pursuant to a

contract with Defendants Alphonso Johnson and Harry Buckley, a franchisee and

the President of Jackson Hewitt, Inc., respectively, Christman managed a Jackson

Hewitt seasonal tax location in a Walmart and prepared tax returns; (2) because

the Walmart kiosk had limited space, Christman stored tax records at his home; (3)

on February 4, 2009, Christman’s contract was mutually terminated with the

understanding that the tax files would be picked up from his residence on February

8, 2009; and (4) Defendants Johnson and Buckley had a Jackson Hewitt office

manager file a false police report accusing Christman of theft of trade secrets and

burglary of a structure.




       1
         We review de novo a district court’s dismissal of a complaint for failure to state a claim
under Rule 12(b)(6). Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1056-57 (11th Cir.
2007). In doing so, we view the complaint in the light most favorable to the plaintiff, and accept
as true all of the plaintiff’s well-pleaded facts. Id. at 1057.

                                                 2
      Christman’s complaint further alleged that: (1) on February 8, 2009,

Defendant Ralph Holmes, an officer with the Fort Pierce Police Department,

arrested Christman at his residence, took the tax files without a search warrant,

filed a fraudulent arrest affidavit and charged Christman with theft of trade secrets,

burglary of a structure, and resisting an officer; (2) Officer Holmes did not

investigate Johnson’s and Buckley’s charges with Walmart security before

arresting Christman; and (3) the state prosecutor thereafter filed a No Information,

dropping all charges without a hearing or arraignment because “none of the

allegations given to the police by Jackson Hewitt can be substantiated.”

      Christman’s complaint asserted claims of false arrest, malicious prosecution

and conspiracy to deprive him of his constitutional rights.

      Under Rule 12(b)(6), a district court may dismiss a complaint that fails to

state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). “In

assessing the sufficiency of the complaint’s allegations, we are bound to apply the

pleading standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

127 S. Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, ___ U.S. ___, 129

S. Ct. 1937, 173 L.Ed.2d 868 (2009).” Ironworkers Local Union 68 v.

AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th Cir. 2011). Under this

standard, the plaintiff’s complaint “must . . . contain sufficient factual matter,

                                           3
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Am.

Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)).

This standard “requires more than labels and conclusions, [or] a formulaic

recitation of the elements of a cause of action” to constitute a short and plain

statement of the claim under Federal Rule of Civil Procedure 8. Twombly, 550

U.S. at 555, 127 S. Ct. at 1964-65. “[T]he tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable to legal conclusions.”

Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1949 (2009).2

       Christman’s complaint alleged two arrest-related claims against Defendant

Officer Holmes, namely that Officer Holmes: (1) made false statements in an

arrest affidavit, and (2) arrested Christman without a warrant or probable cause.

As a state actor, Officer Holmes is entitled to qualified immunity if he was

performing a discretionary function and the alleged conduct did not violate a

clearly established statutory or constitutional right. See Andujar v. Rodriguez,


       2
         In dismissing Christman’s complaint, the district court relied upon the “no set of facts”
standard of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957). That standard was
“retired” by the Supreme Court in Twombly. See Am. Dental Ass’n, 605 F.3d at 1288 (citing
Twombly, 550 U.S. at 563, 127 S. Ct. at 1969). We nonetheless affirm because even under the
Twombly/Iqbal standard, Christman’s complaint was properly dismissed. See Powers v. United
States, 996 F.2d 1121, 1123-24 (11th Cir. 1993) (explaining that this Court may affirm on any
ground supported by the record even if it was not relied upon by the district court).

                                                 4
486 F.3d 1199, 1202 (11th Cir. 2007). The parties do not dispute that Officer

Holmes was performing a discretionary function. Thus, to defeat qualified

immunity, (1) Christman’s complaint needed to allege facts that, when viewed in

the light most favorable to Christman, established a constitutional violation, and

(2) the constitutional right needed to be clearly established on the date of the

alleged violation. Id. at 1202-03.

      Christman’s complaint alleged that Officer Holmes either knowingly or

recklessly made false statements in an arrest affidavit. See Kelly v. Curtis, 21 F.3d

1544, 1554 (11th Cir. 1994) (stating that the Constitution prohibits a police officer

from making knowingly or recklessly false statements in support of warrants).

However, Christman did not allege any facts—such as what false statements

Officer Holmes made, how they were material to probable cause or how Officer

Holmes knew or should have known they were false—to support what amounted

to a “formulaic recitation of the elements.” See Twombly, 550 U.S. at 555, 127 S.

Ct. at 1965. Thus, Christman’s allegation about the arrest affidavit is not enough

to state a claim.

      Christman’s complaint also alleged that Officer Holmes arrested him based

on a criminal complaint filed by Jackson Hewitt’s office manager that falsely

accused Christman of burglary of a structure (presumably the kiosk at Walmart)

                                          5
and theft of trade secrets (presumably material in the tax files at Christman’s

residence). A warrantless arrest violates the Fourth Amendment when there is no

probable cause, Wood v. Kesler, 323 F.3d 872, 878 (11th Cir. 2003), but an officer

may rely on a victim’s criminal complaint to support probable cause. Rankin v.

Evans, 133 F.3d 1425, 1441 (11th Cir. 1998); see also Singer v. Fulton Cnty.

Sheriff, 63 F.3d 110, 119 (11th Cir. 1995) (“An arresting officer advised of a

crime by a person who claims to be the victim, and who has signed a complaint or

information charging someone with a crime, has probable cause to effect an arrest

absent circumstances that raise doubts as to the victim’s veracity.”).

      Moreover, an officer needs only arguable probable cause to be entitled to

qualified immunity. Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th Cir.

2007). Arguable probable cause exists when a reasonable officer in the same

circumstances and with the same knowledge as the defendant could have believed

that probable cause existed to arrest. Id.

      Here, Christman’s complaint alleged that Officer Holmes relied on a

criminal complaint to support probable cause to arrest Christman. The complaint

did not allege any facts suggesting that Officer Holmes’s reliance on the criminal

complaint was unreasonable. Absent such allegations, Christman’s false arrest

claim fails as a matter of law.

                                             6
       As for the malicious prosecution claim against all three Defendants,

Christman’s complaint alleges that the state prosecutor filed a No Information

before any hearing or arraignment. To state a federal claim of malicious

prosecution, the plaintiff must allege, inter alia, the elements of the common law

tort of malicious prosecution, one of which is the commencement of an original

judicial proceeding against the plaintiff. Kingsland v. City of Miami, 382 F.3d

1220, 1234 (11th Cir. 2004). However, in the case of warrantless arrest, the

judicial proceeding does not commence until arraignment or indictment, and a

plaintiff cannot make out a malicious prosecution claim merely for his arrest. Id.

at 1235. Because the allegations in Christman’s complaint establish that

Christman was arrested but not arraigned, he did not state a federal (or state)

malicious prosecution claim.3

       Finally, given that Christman’s complaint did not allege an underlying

constitutional violation, it necessarily failed to allege a § 1983 conspiracy. See

NAACP v. Hunt, 891 F.2d 1555, 1563 (11th Cir. 1990) (explaining that a plaintiff

alleging a § 1983 conspiracy must show an “actionable wrong,” and concluding


       3
         Although Christman’s complaint alleged that Defendant Officer Holmes conducted a
warrantless search of his home and seized tax files, Christman’s appellate brief did not offer any
legal argument on this issue. Thus, Christman abandoned this claim. See Greenbriar, Ltd. v.
City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (stating that issues merely identified
but not argued on the merits are deemed waived).

                                                7
that, because the plaintiff’s underlying malicious prosecution claim failed, its

conspiracy claim also failed). Moreover, Christman’s complaint did not allege

that Officer Holmes reached an understanding with Johnson and Buckley to

violate Christman’s rights. Instead, the complaint alleged only that Johnson and

Buckley filed a false criminal complaint and used the Fort Pierce Police

Department to have Christman arrested. See Bailey v. Bd. of Cnty. Comm’rs of

Alachua Cnty., 956 F.2d 1112, 1122 (11th Cir. 1992) (stating that to establish a

§ 1983 conspiracy claim between state and private actors, the plaintiff must prove

that the defendants “reached an understanding” to deprive the plaintiff of his rights

(quotation marks omitted)). Because Christman’s conspiracy claim was not

supported by any facts in the complaint, the district court properly dismissed it.

       For all of these reasons, we affirm the district court’s dismissal of

Christman’s § 1983 complaint.4

       AFFIRMED.




       4
         We reject the Defendants’ argument that Christman’s notice of appeal was untimely.
Christman’s timely filed motion under Federal Rule of Civil Procedure 60 tolled the time for
filing his notice of appeal. See Fed. R. App. P. 4(a)(4)(A)(vi). The district court denied the Rule
60 motion on January 21, 2011. Because thirty days thereafter was a Sunday and the following
day was Washington’s Birthday, Christman’s notice of appeal was not due until February 22,
2011, the day he filed it. See Fed. R. App. P. 26(a)(1)(C), (a)(6)(A).

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