              Case: 12-15149      Date Filed: 10/22/2013   Page: 1 of 6


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                    No. 12-15149
                                Non-Argument Calendar
                              ________________________

                        D.C. Docket No. 1:10-cv-00455-SCJ



TIMOTHY R. ASHLEY,
in his individual capacity,

                                                               Defendant-Appellant,

                                        versus

DRUPATTY JAIPERSAUD,

                                                                   Plaintiff -Appellee.

                              ________________________

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

                                  (October 22, 2013)




Before HULL, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
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       Timothy Ashley appeals (1) the denial of his motion for summary judgment

on qualified immunity, and (2) the granting of plaintiff Drupatty Jaipersaud’s

partial motion for summary judgment on the issue of liability. We affirm. 1

       Ashley, a police detective, arrested Jaipersaud at the gas station Jaipersaud

owned and operated. Jaipersaud subsequently sued Ashley under 42 U.S.C. §

1983, alleging Ashley violated her Fourth Amendment rights by arresting her

without probable cause. Ashley claimed qualified immunity and moved for

summary judgment. In turn, Jaipersaud moved for partial summary judgment on

the issue of liability.

       The district court denied Ashley’s motion and granted Jaipersaud’s motion

for partial summary judgment. Denying Ashley qualified immunity, the court

reasoned that based on the undisputed facts Ashley had neither probable cause nor

even arguable probable cause to arrest Jaipersaud for any offense. The court then

awarded Jaipersaud partial summary judgment on the issue of liability. Consistent

with its ruling on qualified immunity, the court concluded that the same undisputed

facts showed Ashley did not have probable cause to arrest Jaipersaud, and thus her

arrest was unconstitutional. After a trial on the question of damages, Ashley

appealed.


       1
        We review motions for summary judgment de novo. Browning v. Peyton, 918 F.2d
1516, 1520 (11th Cir. 1990). In light of our disposition of this case, we deny Jaipersaud’s
motion to dismiss this appeal as moot.
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       On appeal, Ashley presents two challenges. First, he claims the district court

erred in denying him qualified immunity. Second, he claims the district court erred

in granting Jaipersaud partial summary judgment on the issue of liability. Neither

claim is properly before this Court, however. See, e.g., Hurley v. Moore, 233 F.3d

1295, 1297 (11th Cir. 2000).

       As a threshold matter, Ashley did not sufficiently deny Jaipersaud’s factual

allegations in a responsive pleading, and has therefore admitted those facts. See

Sinclair Ref. Co. v. Howell, 222 F.2d 637, 639 (5th Cir. 1955) (holding that, by

failing expressly to deny an allegation, the defendant admitted that allegation). 2

Under Federal Rule Civil Procedure 8(b), parties “must . . . admit or deny the

allegations asserted against it by an opposing party.” See Fed. R. Civ. P. 8(b)(1).

When, as here, a responsive pleading is required and an “allegation is not

denied,”—i.e., the party does not “fairly respond to the substance of the

allegation”—such allegation “is admitted.” See Fed. R. Civ. P. 8(b)(2) & (6); see

also Burlington N. R. Co. v. Huddleston, 94 F.3d 1413, 1415 (10th Cir. 1996) (“By

failing to submit an answer . . . denying the factual allegations of Plaintiff’s

complaint, Defendant admitted those allegations, thus placing no further burden

upon Plaintiff to prove its case factually.”).


       2
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
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       Ashley never filed an answer to Jaipersaud’s amended complaint. 3 This was

so even after the district court informed him of this omission, and even after the

court and opposing counsel allowed him to file an answer out of time. Despite

assuring the court and opposing counsel he would do so, Ashley still failed to file

any document that satisfied Rule 8(b)’s requirements. See, e.g., Williams v.

Calderon, 52 F.3d 1465, 1483 (9th Cir. 1995) (noting that Rule 8(b) “require[s]

fact-by-fact responses”). Accordingly, Ashley has admitted the veracity of

Jaipersaud’s factual allegations and is bound by those admissions on appeal. See

Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1177–78 (11th Cir. 2009) (noting

that parties are generally “bound by the admissions in [their] pleadings” and cannot

contest such “judicially admitted” facts on appeal (internal quotation marks

omitted)).

       Moreover, Ashley did not sufficiently present his current legal arguments

and theories to the district court. Regarding qualified immunity, Ashley asserts on

appeal that he is immune from suit because he had arguable probable cause to

arrest Jaipersaud. But Ashley’s theory of qualified immunity in the district court

focused on actual probable cause. See, e.g., Skop v. City of Atlanta, 485 F.3d



       3
          Although Ashley answered Jaipersaud’s initial complaint, “an amended complaint
supersedes the initial complaint and becomes the operative pleading in the case.” Lowery v. Ala.
Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007). Hence, because Ashley has not answered the
operative pleading, he has failed to deny Jaipersaud’s factual allegations. See Fed. R. Civ. P.
8(b); see also Sinclair Ref. Co. v. Howell, 222 F.2d 637, 639 (5th Cir. 1955).
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1130, 1137–38 (11th Cir. 2007) (discussing the legal differences between arguable

probable cause and actual probable cause).

       By shifting his theory of qualified immunity from actual to arguable

probable cause, Ashley impermissibly attempts to “argue a different case from the”

one he “presented to the district court.” See Irving v. Mazda Motor Corp., 136

F.3d 764, 769 (11th Cir. 1998). The law is clear on such matters: “‘theories not

raised squarely in the district court cannot be surfaced for the first time on

appeal.’” Wood v. Milyard, 132 S. Ct. 1826, 1832 (2012) (quoting McCoy v. Mass.

Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991)). Since Ashley did not “specifically

and clearly” articulate his current theory of qualified immunity to the district

court,4 we will not address its merits on appeal. See Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1330–31 (11th Cir. 2004).

       We similarly decline to address Ashley’s challenge to liability. As with his

qualified-immunity claim, Ashley’s arguments on appeal differ materially from

those he presented to the district court. Before the district court, Ashley contended

he was not liable because he had probable cause to arrest Jaipersaud “as a result of

the obstructive behavior she demonstrated during the course of [his] investigation.”

On appeal, however, Ashley contends he had probable cause before he even spoke

       4
         Indeed, Ashley’s motion for summary judgment mentioned arguable probable cause
only in passing and without any reasoned elaboration. Such glancing, unsupported references,
however, are not sufficient to preserve arguments on appeal. See, e.g., Zhou Hua Zhu v. U.S.
Att’y Gen., 703 F.3d 1303, 1316 n.3 (11th Cir. 2013).
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with Jaipersaud—that is, before she even had a chance to obstruct his

investigation.

       Once again, Ashley is arguing a different case from the one he presented to

the district court. See Irving, 136 F.3d at 769. And even if this is not a

jurisdictional bar to review, see Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d

355, 360 (11th Cir. 1984), Ashley’s case does not implicate the “exceptional

conditions” that justify review of newly raised issues, see Access Now, 385 F.3d at

1332–35 & n.4. Because Ashley did not squarely raise his current theory of

probable cause in the district court, we decline to address its merits on appeal. See

FDIC v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir. 1993) (“[A]ppellate

courts generally will not consider an issue or theory that was not raised in the

district court.”).

       In sum, neither of Ashley’s claims is properly before this Court. The district

court’s order denying Ashley’s motion for summary judgment and granting

Jaipersaud’s motion for partial summary judgment is AFFIRMED.




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