            Case: 13-14811   Date Filed: 07/22/2014   Page: 1 of 5


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-14811
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:13-cv-20358-RSR




ROBERT CONYERS,

                                                             Plaintiff-Appellant,

                                   versus

UNITED STATES FISH AND WILDLIFE SERVICE,

                                                           Defendant-Appellee.



                        ________________________

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

                               (July 22, 2014)

Before WILSON, HILL, and FAY, Circuit Judges.
                Case: 13-14811       Date Filed: 07/22/2014       Page: 2 of 5


PER CURIAM:

       Robert Conyers brought this action for malicious prosecution against the

United States under the Federal Tort Claims Act. The district court granted the

United States’ motion to dismiss for failure to state a claim and dismissed Conyers’

complaint with prejudice. Conyers brought this appeal.

                                               I.

       Robert Conyers is a licensed Miami animal broker who was hired to

facilitate the transfer of primates from Guyana to Thailand. The animals arrived in

Miami and were subsequently shipped to China through Los Angeles. At that

time, an inspection revealed that only nine of the twenty-five primates had

survived, the rest having died of dehydration and exposure to extreme

temperatures. The United States Fish and Wildlife Service (the “FWS”)

investigated the incident and declined to prosecute, but notified the Los Angeles

City prosecutor’s office of the matter. The City Attorney’s Office subsequently

filed a ten-count criminal complaint against Conyers, alleging various charges of

animal cruelty under the California Penal code. Conyers was acquitted by a jury

on all ten counts. Thereafter, he filed this action against the United States 1

                                               II.



       1
       Initially, Conyers named the Fish and Wildlife Service as the defendant, but later he
amended his complaint to name the United States as the correct defendant.
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      California law governs the defendant’s liability in this case because the

alleged misconduct occurred in California. Under California law, in order to

prevail on a claim for malicious prosecution, Conyers must be able to show that his

prior prosecution was commenced by or at the direction of the defendant, was

brought without probable cause and was initiated with malice. Siebel v.

Mittlesteadt, 41 Cal. 4th 735, 740 (2007). The district court held that Conyers’

complaint did not adequately allege these elements, thereby failing to meet the

Iqbal requirement that the court be able to “draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). We agree.

      First, the complaint alleges only that the defendant’s investigation of the

death of the animals “led to a criminal action being commenced against

Conyers . . . .” Nowhere does the complaint allege that any employee or agent of

defendant actually directed or caused criminal charges to be filed. The lack of

such an allegation does not permit the reasonable inference that the defendant is

liable for the alleged misconduct.

      Conyers argues that California would not have prosecuted him without the

witnesses and documents that FWS provided it, but, even if this were true, it does

not amount to an allegation that the United States actually caused him to be

prosecuted. It is equally plausible that the City Attorney reviewed the evidence


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and made an independent judgment whether to prosecute. Therefore, the

complaint does not sufficiently allege that the United States caused Conyers to be

prosecuted.

      This failing would be sufficient to require that the complaint be dismissed.

Conyers, however, attached several exhibits to his response to the motion to

dismiss that show that the City Prosecutor approached FWS and other sources to

obtain the information upon which he made the decision to prosecute. These

documents make clear that the FWS was not involved in the City’s decision to

prosecute Conyers.

      The district court noted that it was not required to ignore these filings in

determining whether amendment of the complaint would be futile. For this reason,

the district court dismissed the complaint with prejudice. We agree. There is no

requirement to permit a futile amendment to a plaintiff’s complaint. See Cockrell

v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007).

      Although the district court’s judgment of dismissal may be affirmed on this

ground alone, we note that the district court also concluded that the complaint fails

to make the required allegation that the United States acted with malice in its

conduct in this case. Conyers’ contention that the filing of charges without

probable cause is sufficient to establish malice is incorrect under California law.

See Silas v. Arden, 152 Cal. Rptr. 255, 267 (Ct. App. 2012). There must be


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sufficient allegations of either actual hostility or ill will on the part of the

defendant, or allegation of an intent to deliberately misuse the legal process for

personal gain to support a claim for malicious prosecution. Id. Conyers’

complaint contains no such allegations. Therefore, the complaint was correctly

dismissed for this failing as well.

                                                 III.

       For the foregoing reasons, the judgment of dismissal entered by the district

court is due to be

              AFFIRMED.




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