              Case: 12-11736     Date Filed: 10/15/2012    Page: 1 of 16

                                                            [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT

                           ________________________

                                 No. 12-11736
                             Non-Argument Calendar
                           ________________________

                    D. C. Docket No. 2:10-cv-00526-JES-DNF

KENNETH C. HENDRICKS,
WILLIAM C. KERRIGAN,
ADRIAN OLIVARES,

                                                     Plaintiffs-Appellants,

                                        versus

SHERIFF, COLLIER COUNTY, FLORIDA,
DONALD C. HUNTER,
individually, and as the former Sheriff of Collier County,
THOMAS STORRAR, JR.,
individually, and as the former undersheriff of Collier County,
RALPH SCALA,
in his official capacity as a Deputy with the Collier County Sheriff,
ANDREW DREW,
in his official capacity as a Deputy with the Collier County Sheriff, et al.,

                                                     Defendants-Appellees,

SCOTT SALLEY, et al.,

                                                     Defendants.
              Case: 12-11736    Date Filed: 10/15/2012   Page: 2 of 16

                           ________________________

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

                                (October 15, 2012)


Before DUBINA, Chief Judge, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

      Appellants Kenneth C. Hendricks, William C. Kerrigan, and Adrian

Olivares (collectively “Appellants”) challenge the district court’s ruling on two of

three separate motions for summary judgment in favor of the six Appellees: former

Sheriff Donald C. Hunter, former Undersheriff Thomas Storrar Jr., and Deputy

Sheriffs Ralph Scala, Andrew Drew, John Hurley, and Jose Lopez. For the

reasons that follow, we affirm the district court’s grant of summary judgment in

favor of the Appellees.

                                         I.

      Facts

      Late Saturday night, May 3, 2008, Appellants threw a party at Adrian

Olivares’s home for his birthday. Appellants allege that after 2:00 a.m. the next

morning, four young men who are no longer parties to this action, Tyler Mullins,



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Jarrad Horne, Jeff Storrar,1 and Brian Calyore, arrived at the party. Olivares and

Hendricks asked them to leave because they were drunk and loud, so they left.

Soon after leaving, Mullins returned alone, explaining that there was a fight during

which Horne broke his hand and another person, Cody James Martin, pulled a

knife.

         According to the four Deputy Sheriff-Appellees, Cody James Martin and

Nicholas Chesley Alteen, (hereinafter “the victims”) called the Sheriff’s

Department to report that four white males in a black Suburban attacked them.

The victims recalled part of the Suburban’s Florida license plate, “X44.” The

victims reported that the four attackers had a weapon and that they tried to rob

them. Deputies Scala, Drew, and Hurley searched for the Suburban and found it in

Olivares’s driveway, where Mullins parked it upon returning. The Suburban’s tag

number, X44-TN9, corresponded with the partial plate number provided by the

victims. The Suburban was registered to Mullins, who stood outside Olivares’s

house near his car talking with Appellants when the deputies arrived. Deputy

Lopez also arrived at Olivares’s house at some point after the other deputies

spotted the Suburban.



         1
        Jeff Storrar is the son of Appellee former Undersheriff Thomas Storrar Jr. Jeff is also the
godson of Appellee former Sheriff Donald C. Hunter.

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      Appellee Deputy Hurley then brought the victims to Olivares’s house where

he conducted a “show-up,” spotlighting Mullins and Appellants while asking the

victims if Mullins and Appellants were the ones who confronted them. Both

victims positively identified Mullins and Appellants. Appellants allege that

Mullins immediately admitted his involvement and alerted the deputies that three

others—Jarrad Horne, Jeff Storrar, and Brian Calyore—were actually the other

perpetrators, and that Appellants were not. Appellants further allege that the

deputies refused to listen to Mullins’s story or Appellants’ alibi, but instead

arrested Appellants along with Mullins. Appellants were jailed from early Sunday

morning until they were released on bond at various times late Monday night and

early Tuesday morning.

      At some point after Appellants were detained, Appellee former Undersheriff

Thomas Storrar Jr. learned that his son, Jeff, was in a confrontation involving the

Sheriff’s Department. Jeff Storrar claims that he began to tell his father about his

involvement in the incident and that others were mistakenly identified and

wrongly accused. However, Jeff claims that his father stopped him short and

advised him to speak to an attorney. Thomas Storrar Jr. claims that Jeff only told

him that he was involved in an incident involving the Sheriff’s Department, and

that he advised his son to talk to an attorney. Thomas Storrar Jr. told former

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Sheriff Hunter that his son was involved in an incident, but did not relay any

information to Hunter about mistaken arrests. Hunter advised Storrar to dissociate

himself from any investigation involving Jeff.

      Appellants were charged with “felony battery” and “robbery - armed with

other weapon,” but were never indicted or prosecuted. Soon after the arrests, the

Sheriff’s Department published its bi-weekly bulletin in the community, which

included Appellants’ names and pictures, stating that Appellants were involved in

a robbery. The Sheriff’s Department’s investigation closed in June 2008, but in

August, after Hendricks’s attorney filed a complaint, the Florida Department of

Law Enforcement asked the Sheriff’s Department to investigate further. In the

reopened investigation, Jeff Storrar, who was not previously interviewed, told a

deputy that Appellants were not involved in the May 4, 2008 incident. Lacking

sufficient evidence to prosecute, the state dropped the charges against Hendricks

and Kerrigan in September 2008 and against Olivares in October 2008.

      Procedural History

      In August 2010, Appellants filed a complaint in Florida state court against

Appellees and several other defendants, alleging various civil rights violations

under 42 U.S.C. § 1983 as well as state law torts. The case was removed to

federal court where, over the span of a year, the complaint was amended three

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times and several defendants and claims were dismissed. The remaining

defendants filed three motions for summary judgment: one by Sheriff Kevin

Rambosk, who is not an Appellee, one by Appellees former Sheriff Hunter and

former Undersheriff Storrar, and one by Appellees Deputies Scala, Drew, Hurley,

and Lopez. In their responses to the motions, Appellants dropped several of their

claims. In a single Memorandum and Order, the district court granted summary

judgment for the movants on the remaining claims, but it denied summary

judgment to Lopez on Count XI, a claim for falsifying facts under § 1983. Upon

Appellants’ motion, the court entered final judgment under Federal Rule of Civil

Procedure 54(b) so that Appellants could seek our review of summary judgment

before prosecuting the remaining claim against Lopez.2 Appellants then filed this

timely appeal.

                                                II.

       “We review de novo a district court’s disposition of a summary judgment

motion . . . , applying the same legal standards as the district court.” Durruthy v.

Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). A movant is entitled to summary



       2
          “When an action presents more than one claim for relief — whether as a claim,
counterclaim, crossclaim, or third-party claim — or when multiple parties are involved, the court
may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if
the court expressly determines that there is no just reason for delay.” FED. R. CIV. P. 54(b).

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judgment “if [he] shows that there is no genuine dispute as to any material fact and

[he] is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). We

consider the facts and reasonable inferences in the light most favorable to the non-

moving party. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009).

                                         III.

      Appellants challenge the district court’s grant of summary judgment in

favor of Deputies Scala, Drew, Hurley, and Lopez on Counts IV and VI (false

arrest under § 1983 and false arrest under state law), and in favor of former Sheriff

Hunter and former Undersheriff Storrar on Counts II and XII (false imprisonment

under § 1983 and conspiracy under § 1983). We first analyze the Appellants’ false

arrest claims against the Deputy Sheriffs, and then the false imprisonment and

conspiracy claims against the former Sheriff and Undersheriff.

      A. Counts IV and VI (false arrest under § 1983 and state law)

      Appellants allege that the four Deputy Sheriffs falsely arrested them in

violation of § 1983 and Florida law. Appellants have the right to be free from

unreasonable searches and seizures. See Skop v. City of Atlanta, Ga., 485 F.3d

1130, 1137 (11th Cir. 2007). If, however, the deputies had probable cause to

arrest Appellants, then the seizures were reasonable, and Appellants have no claim

for false arrest under § 1983, see id., or Florida state law, see Lewis v. Morgan, 79

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So. 3d 926, 928–29 (Fla. Dist. Ct. App. 2012). “Probable cause is defined as facts

and circumstances sufficient to warrant a prudent man in believing that [a] suspect

. . . committed or was committing an offense.” Grider v. City of Auburn, Ala., 618

F.3d 1240, 1257 (11th Cir. 2010) (quoting Gerstein v. Pugh, 420 U.S. 103, 111, 95

S. Ct. 854, 862 (1975)) (internal quotation marks omitted). An officer is generally

entitled to rely on, among other things, a victim’s criminal complaint and

identification in a “show-up” as support for probable cause. L.S.T., Inc. v. Crow,

49 F.3d 679, 684–85 (11th Cir. 1995) (per curiam).

      Even if the deputies lacked probable cause, they are still entitled to qualified

immunity if they had arguable probable cause to arrest. See Durruthy, 351 F.3d at

1089. “Arguable probable cause exists when an officer reasonably could have

believed that probable cause existed, in light of the information the officer

possessed.” Id. (internal quotation marks omitted). Officers have arguable

probable cause even when every element of a crime cannot be proven. Grider,

618 F.3d at 1257.

      Appellants argue that at the time of their arrest, there was neither probable

cause nor arguable probable cause to arrest. First, Appellants contend that at the

time of the arrests, the deputies only knew that the two victims positively

identified Appellants and Mullins in a show-up. They assert that this show-up

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identification alone was insufficient to establish actual or arguable probable cause

because none of the deputies interviewed the victims about the reported crimes

prior to making arrests, and thus, none of the deputies were certain about what

actually occurred at the time of the arrests. We agree with the district court that it

was reasonable for the deputy sheriffs to rely on the victims’ specific description

of the Suburban, the general description of the four men involved in the incident,

the location of the Suburban at Olivares’s house, and most importantly, the

victims’ positive identification of Appellants at the show-up. See Crow, 49 F.3d

at 684–85. Thus, we conclude that the deputies had probable cause, or at least

arguable probable cause.

      Appellants next contend that the deputies had no evidence substantiating the

two crimes charged: “robbery - armed with other weapon,” and “felony battery.”

See FLA. STAT. §§ 812.13, 784.041(1). Appellants point out that Mullins and the

three others actually with him did not take any money or property from the

victims, and there was no evidence of the requisite weapon used during the alleged

robbery. Likewise, Appellants argue that there was no evidence of a serious harm

done to either victim that would rise to the level of felony battery. However,

Appellants’ arguments make no difference to a probable cause analysis. An

officer’s “subjective reliance on an offense for which no probable cause exists”

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does not make an arrest faulty where there is actually probable cause to support

some other offense. Lee v. Ferraro, 284 F.3d 1188, 1196 (11th Cir. 2002)

(quoting United States v. Saunders, 476 F.2d 5, 7 (5th Cir. 1973)). In this

instance, the positive show-up identification and the victims’ call to the Sheriff’s

Department would have still given the deputies actual or arguable probable cause

to arrest for less serious offenses.

      Lastly, Appellants assert that the deputies’ investigation at the scene of the

arrest was constitutionally deficient insofar as the deputies ignored available

evidence. Appellants argue that the officers failed to interview others who had

been present at Olivares’s home, including Olivares’s brother who was still inside,

who could have verified that Appellants never left the party with Mullins. Mullins

allegedly volunteered the names of the three other people who were actually with

him when the victims were confronted, yet the officers ignored Mullins and did

not ask for more information. Citing Kingsland v. City of Miami, 382 F.3d 1220

(11th Cir. 2004), Appellants urge us to hold that because there is doubt as to

whether the deputies conducted a thorough investigation at the time of the arrest,

summary judgment was inappropriate on the false arrest claims. In Kingsland, we

reversed the district court’s grant of summary judgment in favor of law

enforcement officers who allegedly manufactured evidence to support probable

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cause, failed to conduct a reasonable investigation, and ignored certain facts

within their knowledge. Id. at 1228–31. But Kingsland is distinguishable from

the instant case. In Kingsland, the actual or arguable probable cause to arrest was

based solely upon the defendant officers’ testimony against the arrestee-plaintiff.

In this case, however, the officers had probable cause to arrest that was not

fraudulently obtained and that arose independently of their own observations —

i.e., the victims’ positive identification of Appellants as their attackers.

        For all these reasons, we conclude that Appellants’ arguments on the false

arrest claims are without merit, and we affirm the district court’s grant of summary

judgment in favor of Appellees Scala, Drew, Hurley, and Lopez.

        B. Counts II and XII (false imprisonment and conspiracy under §

1983)

        False Imprisonment

        Appellants allege that Appellees former Sheriff Hunter and former

Undersheriff Storrar falsely imprisoned them and conspired with one another to

deprive Appellants of their civil rights. To substantiate their false imprisonment

claim, Appellants must show that they were unlawfully detained and deprived of

their liberty, against their will, under circumstances that were unreasonable or

unwarranted. See Mathis v. Coats, 24 So. 3d 1284, 1289 (Fla. Dist. Ct. App.

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2010). Furthermore, a false imprisonment claim brought under § 1983 requires

proof that Appellees were deliberately indifferent to the deprivation of Appellants’

due process rights. See Cannon v. Macon Cnty., 1 F.3d 1558, 1563 (11th Cir.

1993). Appellants must show that Hunter and Storrar knew or should have

known, during Appellants’ detention, that Appellants were wrongfully detained,

and that Hunter and Storrar were each deliberately indifferent to Appellants’ rights

to release. See id.

      Appellants posit that Hunter and Storrar each knew that Appellants were

wrongfully detained because Storrar’s son, Jeff, who admits to being with Mullins

when the victims were confronted, told his father about the mistaken arrests soon

after the incident. Storrar denies that Jeff told him anything except that Jeff was

involved in an incident which the Sheriff’s Department was investigating. Storrar

also denies that former Sheriff Hunter knew about Appellants’ mistaken arrest and

detention because Storrar had no information about Appellants to share with

Hunter. Appellants thus have no evidence that Hunter was aware of the unlawful

detention. Even so, Appellants argue that we should reasonably infer that Hunter

knew about Appellants’ situation because Hunter advised Storrar to remove

himself from any involvement in his son’s case. Hunter’s instruction to Storrar to

remove himself from Jeff’s investigation is simply consistent with what Storrar

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says he told Hunter, i.e., that Jeff was involved in an incident. Consequently, we

do not accept Appellants’ inference as a reasonable one. Without more evidence,

we cannot infer that Hunter knew about the Appellants’ wrongful detention. Thus,

Appellants cannot prove that Hunter had the requisite subjective knowledge of and

deliberate indifference toward the Appellants’ false imprisonment.

      However, Jeff Storrar’s testimony about what he told his father creates a

genuine dispute as to what Thomas Storrar Jr. actually knew. Acknowledging this

unresolved issue of fact, the district court nevertheless granted Storrar and Hunter

summary judgment on the false imprisonment claim because it doubted that the

relatively short duration of confinement amounted to a constitutional deprivation

of due process. See Baker v. McCollan, 443 U.S. 137, 144–45, 99 S. Ct. 2689,

2694–95 (1979) (finding that a 3-day deprivation of liberty resulting from

mistaken identity did not give rise to a constitutional claim because the plaintiff

was arrested and detained on a valid warrant). Alternatively, the district court

found that even if Storrar violated Appellants’ constitutional rights, both Hunter

and Storrar were entitled to qualified immunity.

      To receive the protection of qualified immunity from liability, Storrar’s

conduct must not have violated “clearly established statutory or constitutional

rights of which a reasonable person would have known.” Pearson v. Callahan,

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555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009) (internal quotation marks and

citation omitted). Thus, qualified immunity “protect[s] from suit all but the plainly

incompetent or one who is knowingly violating the federal law.” Lee, 284 F.3d at

1194 (internal quotation marks omitted). If Storrar is entitled to qualified

immunity, he “must first prove that he was acting within the scope of his

discretionary authority when the allegedly wrongful acts occurred.” Id. If Storrar

had discretionary authority, then the burden shifts to Appellants to show that their

imprisonment constituted a violation of a constitutional right, and that the

constitutional right was clearly established at the time of their detention. See

Pearson, 555 U.S. at 232, 129 S. Ct. at 815–16.

      Assuming that Jeff told his father that three innocent people were

mistakenly identified, arrested, and jailed, Thomas Storrar Jr. was acting within his

discretionary authority when he chose not to investigate that claim any further.

The burden then shifts to Appellants to show a constitutional violation of a clearly

established right. Assuming arguendo that Appellants’ detention constituted false

imprisonment under § 1983, there was and is no clearly established law requiring a

sheriff or undersheriff to investigate every lead alleging wrongful detention. The

personal, familial dimension of the instant facts and allegations (i.e., that the

exculpatory information purportedly came from Storrar’s son and Hunter’s

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godson) does not change the outcome of our analysis. Thomas Storrar Jr. did not

violate clearly established law because he was under no duty to believe and

investigate his son’s claims.

      In summary, the district court did not err in granting summary judgment in

favor of Appellees Hunter and Storrar because (1) there is no evidence that Hunter

knew about Appellants’ unlawful detention, (2) the relatively short detention did

not amount to a denial of substantive due process, and (3) even if there was a

deprivation of due process, Appellees are entitled to qualified immunity from suit.

      Conspiracy under § 1983

      As mentioned supra, Appellants are unable to show that Hunter was aware

of Appellants’ wrongful detention. Without awareness, Hunter could not have

conspired with Storrar. Bailey v. Bd. of Cnty. Comm'rs of Alachua Cnty., Fla., 956

F.2d 1112, 1121 (11th Cir. 1992) (“the linchpin for conspiracy is agreement,

which presupposes communication”). Alternatively, we agree with the district

court’s finding that Appellants’ claim for § 1983 conspiracy fails because

Appellants cannot show that they suffered a harm that amounts to a deprivation of

substantive due process. See Grider, 618 F.3d at 1260 (“A plaintiff may state a §

1983 claim for conspiracy to violate constitutional rights by showing a conspiracy




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existed that resulted in the actual denial of some underlying constitutional right.”)

(emphasis added).

                                        IV.

      While we regret that Appellants were mistakenly identified, arrested,

detained, and charged, and while we do not doubt that Appellants have suffered

harm as a consequence of this mistake, Appellants have not shown that the district

court erred in granting Appellees’ motions for summary judgment on the false

arrest, false imprisonment, and conspiracy claims. Accordingly, we affirm the

district court’s grant of summary judgment.

      AFFIRMED.




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