             Case: 15-15654    Date Filed: 08/03/2016   Page: 1 of 13


                                                               [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-15654
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 3:15-cv-00333-WHA-TFM



LARRE ANTHONY HOLLAND,

                                                                 Plaintiff–Appellant,

versus

CITY OF AUBURN, ALABAMA,
an Alabama Municipal Corporation,
PAUL REGISTER,
an individual Alabama resident, individually and/or jointly,
GEORGE MICHAEL CREIGHTON, II,
an individual Alabama Resident, individually and/or jointly,

                                                           Defendants–Appellees.

                          ________________________

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

                                 (August 3, 2016)
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Before MARCUS, MARTIN, and JULIE CARNES, Circuit Judges.

PER CURIAM:

       In this § 1983 action, 1 Plaintiff–Appellant Larre Holland (“Plaintiff”) sued

Defendants–Appellees: George Creighton, II (“Detective Creighton”); the City of

Auburn, Alabama (“the City”); and the Chief of the City’s Police Department,

Chief Paul Register (“Chief Register”), alleging federal claims for malicious

prosecution, false arrest, false imprisonment, unlawful seizure, and additional state

law claims. Plaintiff also alleged that the City and Chief Register failed to

properly screen, hire, and train Detective Creighton. The district court granted

Defendants’ motion to dismiss. Plaintiff appeals, contending that the district court

erred in dismissing his claims against Detective Creighton and the City. 2 After

careful review, we affirm.

                                  I.      BACKGROUND

A.     Factual Background

       In March of 2014, officers from the State of Georgia Clayton County

Sheriff’s Office and a United States Marshall arrested Plaintiff at his workplace in

connection with a robbery. When the officers arrested Plaintiff, they searched him

1
  42 U.S.C. § 1983 provides a civil rights cause of action against an official who, acting under
color of state law, deprives an individual of a federal right. 42 U.S.C. § 1983 (2012).
2
  Plaintiff abandoned his claims against Chief Register on appeal by failing to address the
dismissal of those claims. 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.”).
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and his vehicle. The next morning, a Clayton County magistrate judge denied

Plaintiff bond. Plaintiff stayed at the Clayton County Jail until he was moved to

Auburn, Alabama.

       Plaintiff was charged with the robbery of Kevin McCarley (“Mr.

McCarley”). Mr. McCarley is a taxi driver who was robbed by one of his

passengers. Mr. McCarley gave the police the cell phone number from which the

robber allegedly had called to order a taxi. Detective Creighton began

investigating the robbery and found an association between the address connected

to the cell phone number and Plaintiff. At that point Detective Creighton prepared

a photographic line-up with a picture of Plaintiff. Mr. McCarley identified

Plaintiff as the robber. According to the Amended Complaint, Detective Creighton

then prepared and presented the warrant affidavit to a magistrate judge, obtained an

arrest warrant, and initiated Plaintiff’s arrest. Defendants provided a copy of the

warrant affidavit in their Memorandum in Support of Motion to Dismiss First

Amended Complaint. 3

       After Plaintiff was arrested, Detective Creighton met with him. Detective

Creighton was allegedly rude and cursed at Plaintiff. Plaintiff asked Detective


3
  Ordinarily, a district court may not consider materials outside of the complaint without
converting the motion to dismiss into a motion for summary judgment. However, this Court has
held that “the district court may consider an extrinsic document if it is (1) central to the
plaintiff’s claim, and (2) its authenticity is not challenged.” SFM Holdings, Ltd. v. Banc of Am.
Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010). The warrant affidavit is central to Plaintiff’s
Amended Complaint, and Plaintiff does not challenge the affidavit’s authenticity.
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Creighton to “ping” Plaintiff’s cell phone data to verify that he had not been in

Auburn during the robbery and told Detective Creighton that he had been shopping

at a Kroger in Union City, Georgia, at the time of the robbery. After this meeting,

video surveillance from Kroger was retrieved that verified Plaintiff’s whereabouts.

The robbery charge was then dismissed.

B.    Procedural History

      In May 2015, Plaintiff filed a complaint under 42 U.S.C. § 1983. Plaintiff

later filed an Amended Complaint naming Detective Creighton, Chief Register,

and the City of Auburn as defendants. The Amended Complaint alleged the

following claims: (1) unlawful seizure against Detective Creighton; (2) false arrest

against Detective Creighton; (3) false imprisonment against Detective Creighton;

(4) malicious prosecution against Detective Creighton; (5) failure to properly

screen and hire against Chief Register and the City; (6) failure to properly train

against Chief Register and the City; (7) failure to supervise against Chief Register;

(8) false arrest and false imprisonment under Georgia law against Detective

Creighton; (9) malicious prosecution under Georgia law against Detective

Creighton; (10) negligence under Georgia law against Chief Register and the City;

(11) intentional infliction of emotional distress under Georgia law against

Detective Creighton; (12) false arrest and false imprisonment under Alabama law

against Detective Creighton; (13) negligence under Alabama law against Chief


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Register and the City; (14) intentional infliction of emotional distress under

Alabama law as to Detective Creighton; (15) punitive damages against all

defendants; (16) damages against all defendants; (17) attorney’s fees against all

defendants. Additionally, Plaintiff attached illegal search claims to his unlawful

seizure claim, which he raises on appeal. 4

       The district court granted Defendants’ motion to dismiss. Regarding the

claims against Detective Creighton, the court found that Plaintiff’s claims for

unlawful seizure, false arrest, and false imprisonment failed because Plaintiff was

arrested pursuant to a warrant. Plaintiff’s malicious prosecution claim was

dismissed because probable cause existed for the arrest, Plaintiff failed to identify

any omission made by Detective Creighton in applying for the warrant that would

have removed probable cause, and Detective Creighton was entitled to qualified

immunity. The district court dismissed the illegal search claim because it was

improperly pled, there was probable cause for the arrest warrant, and Plaintiff

provided no facts that connected Detective Creighton to the search of the vehicle.

       Regarding the claims against the City and Chief Register, the district court

found that there was no liability because there was no underlying constitutional

violation. Additionally, the court noted that Plaintiff failed to state a basis for


4
  On appeal, Plaintiff raises only the claims for malicious prosecution, illegal search, and
municipal liability. See Access Now, 385 F.3d at 1330 (“[A] legal claim or argument that has not
been briefed before the court is deemed abandoned and its merits will not be addressed.”).
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municipal or supervisory liability because he failed to assert a specific policy or

custom that led to the alleged violations. The district court then dismissed the

remaining state law claims without prejudice to be filed in state court. Plaintiff

now appeals.

                                II.    DISCUSSION

      On appeal, Plaintiff contends that the district court erred by (1) holding that

Detective Creighton had both arguable probable cause and probable cause to arrest

Plaintiff and to search Plaintiff and Plaintiff’s vehicle and (2) applying a

heightened pleading standard to Plaintiff’s municipal liability claims.

A.    Standard of Review

      We review the district court’s dismissal of a complaint for failure to state a

claim de novo. Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir. 1999). In so

doing, we accept the allegations in the complaint as true and construe them in the

light most favorable to the plaintiff. Fin. Sec. Assurance, Inc. v. Stephens, Inc.,

500 F.3d 1276, 1282 (11th Cir. 2007). In order to survive a motion to dismiss, the

complaint must contain facts sufficient to support a plausible claim to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).




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B.     Claims Against Detective Creighton

       1.      Malicious Prosecution Claim

       Plaintiff challenges the district court’s dismissal of his malicious prosecution

claim by asserting that the district court erred in finding that there was probable

cause or arguable probable cause for his arrest. We find that the district court

properly dismissed Plaintiff’s malicious prosecution claim because Plaintiff failed

to sufficiently plead that the warrant affidavit presented to the magistrate judge by

Detective Creighton lacked probable cause. 5

       Malicious prosecution is a Fourth Amendment violation and a “viable

constitutional tort cognizable under § 1983.” Wood v. Kesler, 323 F.3d 872, 881

(11th Cir. 2003). In order to establish a malicious prosecution claim, Plaintiff must

prove two elements: (1) he “must prove a violation of his Fourth Amendment right

to be free from unreasonable seizures” and (2) he must prove “the elements of the

common law tort of malicious prosecution.” Id. A malicious prosecution claim

under § 1983 encompasses both state and federal law, but the elements are

“ultimately controlled by federal law.” Id. at 882. The elements for malicious

prosecution include: “(1) a criminal prosecution instituted or continued by the

present defendant; (2) with malice and without probable cause; (3) that terminated

in the plaintiff accused’s favor; and (4) caused damage to the plaintiff accused.”

5
  Because we find that there was probable cause for Plaintiff’s arrest, we need not discuss the
arguable probable cause standard that applies in a qualified immunity defense.
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Id.; see Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010) (noting that

Alabama law for malicious prosecution is the same except that it requires only a

“judicial proceeding” not a “criminal prosecution”).

      The elements of malicious prosecution are listed in the conjunctive;

therefore, if Plaintiff is unable to prove any of the four elements, his claim

necessarily fails. We focus on the second element—the existence of probable

cause—and conclude that based on the facts pleaded in Plaintiff’s Amended

Complaint, no reasonable jury could find that Detective Creighton proceeded

without probable cause. “Probable cause requires more than mere suspicion, but

does not require convincing proof.” Bailey v. Bd. of Cty. Comm’r of Alachua Cty.,

956 F.2d 1112, 1120 (11th Cir. 1992), cert. denied, 506 U.S. 832 (1992). “A law

enforcement officer has probable cause to arrest a suspect if the facts and

circumstances within the officer’s knowledge, of which he or she has reasonably

trustworthy information, would cause a prudent person to believe, under the

circumstances shown, that the suspect has committed . . . an offense.” Von Stein v.

Brescher, 904 F.2d 572, 578 (11th Cir. 1990). The probable cause standard is

objective, requiring only “that an arrest be objectively reasonable under the totality

of the circumstances.” Bailey, 956 F.2d at 1119.

      In determining whether or not probable cause existed, great deference is due

to the magistrate’s finding of probable cause. United States v. Leon, 468 U.S. 897,


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914 (1984). However, there are a few exceptions to this rule of deference.

Because a magistrate independently decides whether the warrant affidavit provides

probable cause, deliberate or reckless false statements in the affidavit and/or

omissions in the affidavit remove the presumption of validity accompanying the

warrant. Franks v. Delaware, 438 U.S. 154, 171 (1978); Madiwale v. Savaiko, 117

F.3d 1321, 1326 (11th Cir. 1997) (applying Franks to omissions as well as

deliberate falsehoods).

      Plaintiff alleges that there was no probable cause for his arrest because

Detective Creighton omitted material information from the warrant affidavit. An

omission renders a warrant void only if the officer intentionally or recklessly

omitted information and probable cause is no longer present without that

information. Madiwale, 117 F.3d at 1327. In other words, even intentional or

reckless omissions will not invalidate a warrant if “there remains sufficient content

in the warrant affidavit to support a finding of probable cause.” Id. at 1326–27.

Plaintiff asserts that the warrant for his arrest was invalid because Detective

Creighton deliberately omitted the actual association between Plaintiff and the

address connected to the cell phone used in the robbery.

      In order to move beyond a motion to dismiss, Plaintiff must provide well-

pleaded factual allegations that show (1) Detective Creighton intentionally or

recklessly made the omission and (2) the omission was “necessary to the finding of


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probable cause.” United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980)6

(quoting Franks, 438 U.S. at 156–57). Plaintiff did not meet this burden. He

alleges that the omission was “deliberately” made by Detective Creighton with a

“reckless disregard of the law and of the legal rights of Plaintiff.” However,

Plaintiff has never stated the omission.7 By failing to provide a clear statement

conveying the actual association between him and the relevant address, Plaintiff

failed to state grounds for which this Court could find that the warrant affidavit

contained a material omission that would render the warrant void.

       Even assuming that Plaintiff could show a weak association between him

and the relevant address, Detective Creighton would still have probable cause to

present the warrant affidavit to the judge and initiate Plaintiff’s arrest. The warrant

affidavit states that the victim gave the police the cell phone number, which the

police traced back to Stephanie Young of Fairburn, Georgia. The affidavit then

states that “[a] black male associated with Young’s address was identified as

[Plaintiff],” that Plaintiff “matched the physical description given by [the cab


6
  All cases from the former Fifth Circuit handed down by the close of business on September 30,
1981, are binding on the Eleventh Circuit. Madiwale, 117 F.3d at 1327 n.6.
7
  Plaintiff never denied an association with the relevant address. Instead, he hinted that the
association was a distant one through inconsistent statements in various pleadings. (“If the Judge
knew that Plaintiff was associated with the address twenty years ago because he was a victim of
theft . . .”); (“If this court would insert into the warrant affidavit that Appellant was a victim of
child molestation at the address associated with the address when he was 10 years old . . .”). To
this point, he has never provided the actual association.


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driver],” and that the victim positively identified Plaintiff as the robber in a

photographic line-up. None of these underlying facts has been disputed by

Plaintiff. “Generally, an officer is entitled to rely on a victim’s criminal complaint

as support for probable cause.” Rankin v. Evans, 133 F.3d 1425, 1441 (11th Cir.

1998); see also United States v. Bell, 457 F.2d 1231, 1238 (5th Cir. 1972)

(discussing the importance of victim statements by noting that the information

provided by victim eyewitnesses and identified bystanders do not require

supporting affidavits attesting to the reliability of the information). Detective

Creighton relied on the victim’s statements and arrested Plaintiff after he had

sufficient evidence to support a finding of probable cause.

      2.     Illegal Search Claims

      To the extent that Plaintiff raises his illegal search claims on appeal by

asserting that Detective Creighton lacked probable cause for the searches, we find

that both claims were properly dismissed by the district court. As an initial matter,

Plaintiff improperly pled his illegal search claims by adding them on to Count 1 of

the Amended Complaint. See Cesnik v. Edgewood Baptist Church, 88 F.3d 902,

905 (11th Cir. 1996) (“[S]eparate, discrete causes of action should be plead [sic] in

separate counts.”). Plaintiff then failed to comply with the district court’s order

granting leave to file an amended complaint in order to “separate out his federal




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claims into separate counts by legal theory.” Furthermore, both claims fail on their

merits.

      Plaintiff’s illegal search claim as to his person fails because Detective

Creighton had probable cause to arrest Plaintiff. See generally United States v.

Robinson, 414 U.S. 218 (1973) (discussing and affirming law enforcement

officers’ authority to search the person incident to a lawful arrest). Plaintiff’s

illegal search claim as to his vehicle also fails. In order to establish liability,

Plaintiff “must show ‘proof of an affirmative causal connection’ between a

government actor’s acts or omissions and the alleged constitutional violation.”

Brown v. City of Huntsville, 608 F.3d 724, 737 (11th Cir. 2010) (quoting Zatler v.

Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)). Plaintiff does not allege that

Detective Creighton was involved with the vehicular search or that he did anything

to lead the Georgia police officers and the U.S. Marshall to initiate that search.

Because Plaintiff has failed to provide any sort of factual connection between

Detective Creighton’s actions and the search of his car, the district court properly

dismissed the claim.

C.    Claims Against the City

      Plaintiff asserts that the district court erred in dismissing his municipal

liability claims because the district court applied a heightened pleading standard.

We find that the district court appropriately and correctly applied the normal


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pleading standard set forth by the Supreme Court in Iqbal to dismiss Plaintiff’s

municipal claims.

         Municipalities are not subject to respondeat superior or vicarious liability

under § 1983; rather, there are strict limitations on municipal liability. Gold v. City

of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). “[T]o impose § 1983 liability on

a municipality, a plaintiff must show: (1) that his constitutional rights were

violated; (2) that the municipality had a custom or policy that constituted deliberate

indifference to that constitutional right; and (3) that the policy or custom caused

the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Here,

Plaintiff’s municipal liability claims against the City fail because Plaintiff has not

demonstrated that he suffered a constitutional violation. See Dahl v. Holley, 312

F.3d 1228, 1236 (11th Cir. 2002). Furthermore, Plaintiff failed to sufficiently

plead any policy or custom in the City’s training, hiring, or screening practices that

caused the alleged constitutional violation.8

                                   III.   CONCLUSION

         For the reasons stated above, we AFFIRM the judgment of the district

court.




8
  Plaintiff incorrectly asserts that he is entitled to discovery to attempt to find a municipal
pattern or custom. See Iqbal, 556 U.S. at 686 (When the “complaint is deficient under Rule 8,
[the plaintiff] is not entitled to discovery.”).
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