           Case: 16-10093   Date Filed: 06/06/2016   Page: 1 of 7


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10093
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cv-00338-MHS



PEYTON OVINGTON,

                                                            Plaintiff-Appellant,

                                  versus

ATLANTA INVESTMENT GROUP, INC.,
FURDGE TURNER,
CITY OF ATLANTA,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (June 6, 2016)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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       Peyton Ovington was arrested and prosecuted for robbing a Subway

restaurant located on Ponce de Leon Avenue in Atlanta. After the State dropped

the charges, he sued Furdge Turner, the police officer who swore out the arrest

warrant against him. 1 Ovington alleged that, in applying for the warrant, Turner

had lied about or failed to disclose a number of key facts, leading to issuance of an

arrest warrant that was not actually supported by probable cause. The district court

granted summary judgment to Turner on all of Ovington’s federal and state law

claims. It held that he was shielded from the federal claims by qualified immunity

and from the state claims by the Georgia doctrine of official immunity.

       Ovington challenges the district court’s judgment on just three grounds.

First, he argues that the district court improperly adopted Turner’s version of

certain disputed material facts. The district court did not abuse its discretion in

doing so, however, because Ovington never filed a proper response to Turner’s

statement of undisputed facts. Northern District of Georgia Local Rule 56.1(B)(1)

requires a movant for summary judgment to include with his motion and brief “a

separate, concise, numbered statement of the material facts to which the movant

contends there is no genuine issue to be tried. Each material fact must be

numbered separately and supported by a citation to evidence proving such fact.”

N.D. Ga. R. 56.1(B)(1). The next paragraph in the rule requires respondents to

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         Ovington also sued Atlanta Investment Group, Inc. and the City of Atlanta. His claims
against those defendants are not before us and so we say no more about them.
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include with their responsive briefs “[a] response to the movant’s statement of

undisputed facts.” Id. at R. 56.1(B)(2)(a). The rule clearly explains that the

response “shall contain individually numbered, concise, nonargumentative

responses corresponding to each of the movant’s numbered undisputed material

facts.” Id. at R. 56.1(B)(2)(a)(1). Ovington never filed a response to Turner’s

statement of undisputed facts — at least not one that conformed to the local rule’s

requirements. He did file a “Statement of Facts as to Which a Genuine Dispute

Remains,” but that document did not purport to respond to Turner’s statement of

undisputed facts. It also did not function as the type of response the rule calls for.

Its opening paragraph is argumentative and none of its paragraphs corresponds to

Turner’s numbered undisputed facts. Turner noted the problem in his reply brief,

but Ovington never sought leave from the district court to fix it.

      Ovington’s failure to comply with the rule’s unambiguous requirements is

not an unimportant defect. Rule 56.1(B) “is designed to help the court identify and

organize the issues in the case.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303

(11th Cir. 2009) (citing Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008)).

Noncompliance hampers the court’s handling of the case and adds to the court’s

already substantial workload. That is why the rule imposes consequences on

parties who fail to comply with its terms. Specifically, it requires a district court to

“deem each of the movant’s facts as admitted” unless the response:


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       (i) directly refutes the movant’s fact with concise responses supported
       by specific evidence (including page or paragraph number); (ii) states
       a valid objection to the admissibility of the movant’s fact; or (iii)
       points out that the movant’s citation does not support the movant’s
       fact or that the movant’s fact is not material or otherwise has failed to
       comply with the provisions set out in [Local Rule 56.1B(1)].

N.D. Ga. R. 56.1(B)(2)(a)(2). The district court reasonably concluded that

Ovington’s response failed to do those things. Accordingly, it acted well within its

discretion when it deemed admitted the admissible facts set out in Turner’s

statement of undisputed facts. See Clark v. Housing Auth. of Alma, 971 F.2d 723,

727 (11th Cir. 1992) (noting that district courts get “great deference” in

interpreting their local rules).

       The next issue before us is whether, in light of the undisputed facts before it,

the district court properly granted Turner’s motion for summary judgment, based

on qualified immunity, on Ovington’s federal law claims. Qualified immunity

covers a police officer’s action in swearing out an arrest warrant so long as the

officer had “arguable probable cause” to arrest the subject of the warrant.

Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997). Arguable probable

cause exists whenever any reasonable officer “in the same circumstances and

possessing the same knowledge as the [defendant police officer] could have

believed that probable cause existed to arrest [the plaintiff arrestee].” Von Stein v.

Brescher, 904 F.2d 572, 579 (11th Cir. 1990).



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      Turner had arguable probable cause to arrest Ovington. A tipster informed

police that the subject of a photo from the robbery looked like a former employee

of the Subway restaurant on Piedmont Road in Atlanta — where Ovington used to

work. An employee at that Subway told Turner that the subject of the photo

looked like Ovington, and another employee there agreed that the photo “favored”

Ovington. From those facts, taken together, a reasonable police officer could have

believed he had probable cause to arrest Ovington.

      Ovington’s arguments to the contrary either misrepresent the record or

misinterpret the law. He contends, for example, that Turner repeatedly lied in his

warrant application about what the Piedmont Road Subway employees had told

him. But Turner’s warrant application did not include any representations about

anyone having told him anything. The application merely described the robbery

and stated that “to the best of [Turner’s] knowledge and belief, Peyton John

Ovington” was the one who had perpetrated it. Whatever the application’s other

shortcomings, it did not include lies about what people told Turner. That fact,

among others, distinguishes this case from Kingsland v. City of Miami, 382 F.3d

1220 (11th Cir. 2004), on which Ovington relies.

      Ovington also suggests that “[t]he law holds that a person’s build is

insufficient for identification to establish probable cause for an arrest,” but the

Ninth Circuit case he cites for that proposition — United States v. Ricardo D., 912


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F.2d 337 (9th Cir. 1990) — is plainly distinguishable from this one. In Ricardo D.,

witnesses told sheriff’s deputies in Sierra Vista, Arizona to be on the lookout for a

Mexican man who was “young,” “thin,” and “not too tall.” Id. at 942. The Ninth

Circuit decided that the witnesses’ generic descriptions did not support probable

cause to arrest the defendant in the case since, “[i]n a location only thirty miles

from the Mexican border, it can hardly be said that the presence of a young,

Mexican male is highly unusual.” Id.

      The evidence against Ovington was patently stronger than the evidence in

the Ricardo D. case. In this case, three people were separately shown the photo of

the robber. Even though the photo did not show his face (he was wearing a mask),

it revealed a lot about him beyond just his height and weight. It showed a tattoo on

his upper left arm (Ovington has a tattoo there as well); the shoes, hat, and clothing

he was wearing; his posture; the width of his shoulders — the sorts of specific

details that could help support an identification but that were entirely absent in

Ricardo D. Having observed those details, all three people agreed that the subject

of the photo looked like Ovington. There is simply no comparison between that

kind of evidence and what the deputies relied on in Ricardo D.

      Ovington emphasizes that, although three people separately told police that

the subject of the photo looked like him, none of them was completely certain

about it. Complete certainty, however, is not the standard in qualified immunity


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cases like this one. Arguable probable cause is. See Kingsland, 382 F.3d at 1232.

And arguable probable cause is a standard lower than probable cause, see Knight v.

Jacobson, 300 F.3d 1272, 1274 (11th Cir. 2002), which itself requires only a

“reasonable probability and not certainty.” Craig v. Singletary, 127 F.3d 1030,

1042 (11th Cir. 1997). We reject Ovington’s arguments to the contrary.

      The only remaining issue is whether the district court erred in holding that

Georgia’s doctrine of official immunity shielded Turner from Ovington’s state law

claims. Because Turner’s actions were discretionary and within the scope of his

official authority, he is entitled to official immunity unless Ovington shows that

Turner acted with actual malice or intent to injure. See Cameron v. Lang, 549

S.E.2d 341, 345 (Ga. 2001). Ovington has made no such showing.

      AFFIRMED.




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