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                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-10815
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:16-cv-00779-ODE

MICHAEL PIERCE,
MICHELLE PIERCE,

                                                   Plaintiffs - Appellants,

versus

CLAYTON COUNTY, GEORGIA,
RANDY DUANE BRASHEARS,
Individually and in his official capacity as Detective
employed by Clayton County,
MICHAEL J. REGISTER,
Individually and in his official capacity as Police Chief
of Clayton County,
ROBBIE FREDERICK,
Individually and in his official capacity as Property Crimes
Unit Supervisor of Clayton County Police Department,

                                                   Defendants - Appellees,

GRANT KIDD,
Individually and in his official capacity as an Officer
employed by Clayton County,

                                                   Defendant.
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                                ________________________

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

                                     (November 21, 2017)

Before MARCUS, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

       Michael and Michelle Pierce appeal the district court’s dismissal of their

42 U.S.C. § 1983 claim based upon their arrests for theft and forgery involving a

stolen vehicle purchased at an auction. They also appeal the district court’s denial

of their motion to amend their complaint. Upon review of the record and the

parties’ briefs, we affirm in part, reverse in part, and remand for further

proceedings.1

                                                 I

       Because we write for the parties, we assume their familiarity with the

underlying record and recite only what is necessary to resolve this appeal.

       According to their complaint, on July 23, 2015, the Pierces purchased a 2014

Toyota Corolla at an auction from Public Storage, receiving an auction sale receipt


1
  The district court’s order did not dispose of all of the Pierces’ claims. There remains a state law
claim of intentional infliction of emotional distress against Officer Grant Kidd. The district court,
however, certified its order as a final judgment under Fed. R. Civ. P. 54(b), concluding that there
was “no just reason to delay” entry of final judgment until the claims against Officer Kidd were
resolved. We conclude that the district court properly certified its order for immediate review
under Rule 54(b).
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and certification of public sale. The following day, a tow truck driver sent by the

Pierces to retrieve the car ran the vehicle identification number and contacted the

Pierces to tell them that the vehicle was listed as stolen. The Pierces contacted the

authorities. A Clayton County Police Department officer took possession of the

vehicle, which was towed to the Tara Wrecker impound lot, and told the Pierces

that there was a hold on the vehicle.

      According to the Pierces, Randy Brashears, a detective for the Clayton

County Police Department, removed the vehicle from the list of stolen vehicles.

The Pierces then contacted Tara Wrecker to notify the impound lot of their intent

to place a lien on the vehicle. Tara Wrecker informed them that the vehicle was no

longer listed as stolen. Mrs. Pierce went to the Clayton County Police Department

with this information and her documents. The records clerk checked the databases

and determined there was no longer a hold on the vehicle. The vehicle was released

from Tara Wrecker and towed to the Pierces’ place of business.

      The Pierces obtained a Certificate of Inspection from the Griffin Police

Department, in which a police officer swore that the vehicle was not listed as

stolen. The Pierces registered the vehicle, paid for tax and tag, had the title bonded,

purchased insurance, and began making improvements to the vehicle.

      The following day, Detective Brashears contacted the Pierces to inform them

that a mistake had been made in releasing the car. According to the Pierces, they


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showed Detective Brashears all of their paperwork and described the course of

events leading to the release of the vehicle. They allege that he “exhibited agitation

and aggression consistent with ill will” toward them during the meeting. The

Pierces surrendered the vehicle to the Clayton County Police Department, and the

vehicle was removed from their place of business on July 28, 2015.2

         On August 6, 2015, the Pierces spoke with Detective Brashears to inquire

about recovering money they had spent on the vehicle. He became angry, told them

to call Captain Brody, and hung up the phone. Captain Brody stated that he would

speak with a supervisor and call them back.

         At some point, Detective Brashears obtained arrest warrants for Mr. Pierce

for theft by taking and for Mrs. Pierce for theft by taking and forgery. The Pierces

were arrested on August 6, 2015, the same day they had inquired about recovering

money they spent, and remained in custody for two days. They allege that the day

after they were released, they were contacted by Clayton County Police Officer

Grant Kidd, who offered to have their charges administratively dismissed in

exchange for payment of a bribe. In January of 2016, all charges against the

Pierces were administratively dismissed because the vehicle was legally purchased

at auction and the Department had removed a hold on the vehicle. Officer Kidd

was later indicted for soliciting a bribe to dismiss the pending criminal charges.


2
    The vehicle was ultimately sold at an auction in December of 2015.
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         The Pierces asserted claims under 42 U.S.C. § 1983 and Georgia state law

against Clayton County, Detective Brashears, Officer Kidd, Michael Register,

Clayton County’s Police Chief, and Robbie Frederick, Clayton County’s Police

Department Property Crimes Unit Supervisor. The district court dismissed a

number of those claims, and denied the Pierces’ motion for leave to amend to add a

Monell 3claim for deliberate indifference with respect to the Clayton County Police

Department’s hiring of Officer Kidd and a cause of action for conversion under

Georgia law, determining that both of those claims would be futile. The Pierces

appeal the district court’s dismissal of their § 1983 malicious prosecution claim,

civil conspiracy claim, and claim for attorneys’ fees and damages against

Detective Brashears, as well as the district court’s denial of their motion to amend.

                                                 II

         We review de novo the district court’s grant of a motion to dismiss for

failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Leib v. Hillsborough

Cty. Pub. Transp. Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). Although a court is required to accept the allegations in a complaint as


3
    Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
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true, “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

                                         A

      The Pierces argue that the district court improperly dismissed their claim for

malicious prosecution against Detective Brashears. “To establish a federal

malicious prosecution claim under § 1983, the plaintiff must prove a violation of

his Fourth Amendment right to be free from unreasonable seizures in addition to

the elements of the common law tort of malicious prosecution.” Wood v. Kesler,

323 F.3d 872, 881 (11th Cir. 2003) (emphasis in original). “[F]or purposes of a §

1983 malicious prosecution claim, the constituent elements of the common law tort

of malicious prosecution included: (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.” Id. at 881–82. These are the same elements required under

Georgia law for the tort of malicious prosecution. See Kelly v. Curtis, 21 F.3d

1544, 1556 (11th Cir. 1994).

      “Probable cause to arrest exists where the facts and circumstances within the

collective knowledge of the law enforcement officials, of which they had

reasonably trustworthy information, are sufficient to cause a person of reasonable

caution to believe that an offense has been or is being committed.” Wilson v.


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Attaway, 757 F.2d 1227, 1235 (11th Cir. 1985) (internal citation and quotation

marks omitted). “Probable cause issues are to be decided on an objective basis by

courts without regard to the subjective beliefs of law enforcement officers,

whatever those beliefs may have been.” Craig v. Singletary, 127 F.3d 1030, 1042

(11th Cir. 1997). “No officer has a duty to prove every element of a crime before

making an arrest.” Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir. 2007).

      The Pierces have adequately alleged the elements of a malicious prosecution

claim. They have asserted that they were arrested under an arrest warrant, that the

charges were ultimately administratively discharged, and that they suffered

damages as a result. Taking their allegations as true, we cannot conclude at this

stage of the proceedings that Detective Brashears had probable cause based on the

information available to him. According to allegations, Detective Brashears

himself removed the vehicle from the stolen vehicle list in either the Georgia

Crime Information Center’s records, or the National Crime Information Center’s

records, or both. The amended complaint also states that Detective Brashears

informed the Pierces that the police had “made a mistake” in releasing the vehicle

and that there had been a “clerical error.” See Am. Compl., D.E. 14 ¶ 25.

      The Pierces further alleged that while meeting with Detective Brashears,

they showed him all of their paperwork and “expressly advised” him of the course

of events leading to the release of the vehicle. See id. ¶ 27. Additionally, the


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Pierces asserted that Detective Brashears perjured himself by making

misrepresentations and omissions in the arrest warrant affidavits. Id. ¶ 35, 36.

According to the amended complaint, Detective Brashears knew that, inter alia,

the Pierces had not removed the vehicle unlawfully, that the documents submitted

by the Pierces attesting to the valid purchase of the vehicle at the auction were not

fraudulent, and that Mrs. Pierce had not provided fraudulent information to the

police department. See id. ¶ 35. Likewise, according to the amended complaint,

Detective Brashears intentionally and wrongfully failed to disclose, in the

application for a warrant, his (or the Police Department’s) responsibility for the

clerical error releasing the hold on the vehicle and the numerous actions the Pierces

allegedly took to verify the status of the vehicle. See id. ¶ 36.

      Moreover, given these facts as alleged—that Detective Brashears himself

had removed the vehicle from the stolen vehicle registry and that he was fully

apprised of the Pierces’ paperwork and what had transpired—the complaint

sufficiently pleads that Detective Brashears acted with malice in seeking the arrest

warrants for the Pierces.

                                           B

      Detective Brashears argues that, even if he did not have probable cause, he is

entitled to qualified immunity because he had “arguable” probable cause and did

not violate clearly established law. “Qualified immunity offers complete protection


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for government officials sued in their individual capacities if their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Kingsland v. City of Miami, 382 F.3d 1220, 1231

(11th Cir. 2004). “Plainly, an arrest without probable cause violates the right to be

free from an unreasonable search under the Fourth Amendment.” Id. at 1232.

Moreover, “falsifying facts to establish probable cause is patently unconstitutional

and has been so long before” the Pierces’ arrest. Id. Viewing the facts in the light

most favorable to the Pierces, they have sufficiently alleged a violation of their

clearly established Fourth Amendment rights.

      “Nevertheless, officers who make an arrest without probable cause are

entitled to qualified immunity if there was arguable probable cause for the arrest.”

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

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

possessed.” Durruthy v. Pastor, 351 F.3d 1080, 1089 (11th Cir. 2003) (internal

quotation marks omitted). “[W]hat counts for qualified immunity purposes relating

to probable cause to arrest is the information known to the defendant officers . . . at

the time of their conduct, not the facts known to the plaintiff then or those known

to a court later.” Jones v. Cannon, 174 F.3d 1271, 1283 n.4 (11th Cir. 1999)).

      Taking the facts alleged in the Pierces’ complaint as true, however, we

cannot say at this stage of the proceedings that Detective Brashears had even


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arguable probable cause for the Pierces’ arrest. The facts alleged by the Pierces

support a conclusion that the arrest affidavit included recklessly or deliberately

false statements that are material to a finding of arguable probable cause. “Without

further factfinding, it is impracticable to conclude that arguable probable cause

existed for [the Pierces’] arrest when it is unclear how much of the proffered

evidence tending to support a finding of arguable probable cause was

manufactured or misrepresented.” Kingsland, 382 F.3d at 1232. Accordingly, the

Pierces’ claim for malicious prosecution against Detective Brashears may proceed.

      Because the district court’s dismissal of the Pierces’ claims for civil

conspiracy and for attorney’s fees and damages was based upon its dismissal of all

claims against Detective Brashears, we remand for the district court to address

those claims in the first instance.

                                          III

      We review the denial of a motion for leave to amend the complaint on the

ground of futility de novo. See City of Miami v. Wells Fargo & Co., 801 F.3d 1258,

1265 (11th Cir. 2015). A proposed amendment is futile when the complaint as

amended would not survive a Rule 12(b)(6) motion to dismiss. See Burger King

Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999).




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                                          A

      The Pierces argue that the district court improperly denied their motion for

leave to amend to include a state law claim for conversion. We agree.

      Georgia codified the common-law action of conversion at O.C.G.A. § 51-

10-1. See Grant v. Newsome, 411 S.E.2d 796, 797 (Ga. Ct. App. 1991); Carter v.

Butts Cty., Ga., 821 F.3d 1310, 1324 (11th Cir. 2016). This statute “authorizes the

recovery of damages where a government official, without lawful authority, has

temporarily deprived an individual of his or her property.” Grant, 411 S.E.2d at

798; Carter, 821 F.3d at 1324. Conversion consists of “an unauthorized

assumption and exercise of the right of ownership over personal property

belonging to another, in hostility to his rights; an act of dominion over the personal

property of another inconsistent with his rights; or an unauthorized appropriation.”

Maryland Cas. Ins. Co. v. Welchel, 356 S.E.2d 877, 880 (Ga. 1987).

      In stating a claim for conversion under Georgia law, a plaintiff must

normally allege: “(1) title to the property or the right of possession, (2) actual

possession in the other party, (3) demand for return of the property, and (4) refusal

by the other party to return the property.” City of Atlanta v. Hotels.com, L.P., 775

S.E.2d 276, 279 (Ga. Ct. App. 2015). Georgia courts have recognized, however,

that “demand and refusal are not required where a person comes into possession of

the property unlawfully.” Carter, 821 F.3d at 1324 (citing Williams v. Nat’l Auto


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Sales, Inc., 651 S.E.2d 194, 197 (Ga. Ct. App. 2007)). Additionally, “it is not

necessary that the defendant assert any right of ownership over the property” or

that “the defendant appl[y] it to his own use.” Welchel, 356 S.E.2d at 261. “It is in

law a conversion whether it be for his own or any other’s use…[and] it is sufficient

if the defendant wrongfully assumes dominion over the property inconsistent with

the owner’s right.” Id.

       The district court determined that the Pierces had not made out a prima facie

case for conversion and that allowing them to add a claim for conversion would be

futile. Specifically, it determined that “no Defendant to the current lawsuit is in

possession of the vehicle”4 and that the Pierces, by their own admission, did not

demand return of the vehicle after their release from custody and that no one ever

refused to return the vehicle to them. 5

       In our view, the district court applied too narrow a view of possession. The

defendants make much of the allegation in the amended complaint that “Plaintiffs

then surrendered possession of the vehicle to the Clayton County PD,” D.E. 14 ¶

4
  To the extent that the district court read Georgia law as requiring a defendant to still be in
possession of the property at the time of the complaint or lawsuit, it erred. See O.C.G.A. § 51-
10-1 (“The owner of personalty is entitled to its possession. Any deprivation of such possession
is a tort for which an action lies.”) (emphasis added); Romano v. Ga. Dept. of Corrections, 693
S.E.2d 521, 524 (Ga. Ct. App. 2010) (“OCGA § 51-10-1 authorizes recovery of damages when a
government official, without lawful authority, deprives an individual of his or her property on
even a temporary basis.”) (emphasis added).
5
  Although unclear in their original motion, the Pierces clarify on appeal that they intended to
assert a claim of conversion only against Detective Brashears.


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29 (emphasis added), arguing that this proves that the Department took possession

of the vehicle, as opposed to Detective Brashears, and that the vehicle was given

willingly, not taken illegally.

      The defendants ignore, however, the allegation that it was Detective

Brashears who effected the removal of the vehicle, purporting to act on behalf of

and under the authority of the Clayton County Police Department to do so. If it is

ultimately proven that Detective Brashears had no legal authority to effect that

repossession, as the Pierces have adequately pled in their amended complaint, then

the fact that he did not physically repossess the vehicle himself, but instead had the

Police Department repossess it under his authority and direction, does not shield

him from liability. Detective Brashears cannot lawfully do through the Police

Department what he cannot lawfully do as a member of the Department (i.e., if

Detective Brashears has no lawful authority to remove the vehicle, then he cannot

hide behind the Department’s removal of the vehicle on his command, which itself

presumes Detective Brashears’ authority to do so).

      The defendants also ignore certain paragraphs of the amended complaint,

which include a statement by Mrs. Pierce that “if ya’ll tell me to turn it over, I’ll

turn it over,” and a statement by Detective Brashears saying “Good luck recovering

any money from us.” Id. at ¶ 26, 28. In demanding that the Pierces turn the vehicle

over to him, Detective Brashears had the weight, authority, and legitimacy of law


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enforcement on his side, and the Pierces were not required to physically resist

turning the vehicle over to him. It is enough that they protested Brashears’ removal

of the vehicle and attempted to prove their lawful ownership of the vehicle, see id.

at ¶ 26, 27, and their “surrendering” the vehicle to the Clayton County Police

Department does not foreclose their claim for conversion.

      The district court also mistakenly applied the elements of conversion

required when a defendant comes into possession of property lawfully (a demand

by the plaintiff for return of the property, and a refusal to do so by defendant)

without considering the requirements where the taking of the property is unlawful.

See Williams, 651 S.E.2d at 196-97. The Pierces have pled facts sufficient for a

finding that Detective Brashears had no legal authority to dispossess them of their

vehicle (e.g., that Detective Brashears knew the Pierces had a legal right to possess

the vehicle, that he removed the vehicle from the stolen vehicle registry himself,

that he did not have probable cause to arrest the Pierces, etc.).

      The defendants nevertheless argue that in order to satisfy the elements of

conversion which apply when a defendant comes into possession of property

unlawfully, a plaintiff must allege that the defendant “dispose[d] of the property

without authority and retain[ed] the proceeds.” Williams, 651 S.E.2d at 197. The

defendants rely on Williams, but the court in Williams was giving but one example

(which applied in that particular case) as to why ‘demand and refusal’ is not


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required when a defendant comes into possession of property unlawfully. See id.

The court did not in any way require these factors for all such situations (“a

conversion may also be proved by showing…”), nor did the court hold that its two

examples were the only ways to prove conversion (“[t]here are at least two

avenues available to prove conversion”) (emphases added). Id. at 196, 197.

Moreover, the requirement urged by the defendants would directly conflict with

the principle established by the Georgia Supreme Court that “[i]t is unnecessary to

show that the defendant applied [the property] to his own use.” See Welchel, 356

S.E.2d at 880. And it would lead to the nonsensical result that a defendant would

be liable for conversion if he sold the property which he had unlawfully acquired,

yet would not be liable as long as he kept the property for himself. Williams neither

requires nor suggests such an interpretation.

      Because the Pierces have pled facts sufficient to maintain a claim for

conversion against Detective Brashears, the district court improperly denied their

motion for leave to amend their complaint.

                                         B

      The Pierces also argue that the district court erred in determining that

allowing them to bring a Monell claim for deliberate indifference with respect to

the hiring of Detective Kidd would be futile. “Monell imposes liability on

municipalities for deprivations of constitutional rights visited pursuant to


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municipal policy, whether that policy is officially promulgated or authorized by

custom. The official policy or custom must be the moving force of the

constitutional violation’ in order to establish liability of a government body under

§ 1983.” Gilmere v. City of Atlanta, Ga., 737 F.2d 894, 901 (11th Cir. 1984)

(internal quotation marks and citation omitted). But the only claim remaining

against Officer Kidd is a state law claim for intentional infliction of emotional

distress. Because the Pierces have failed to adequately allege an underlying

constitutional violation with respect to Officer Kidd, their Monell claim against

Clayton County and Police Chief Michael Register fails.

                                         IV

      The district court did not err in denying the Pierces’ motion for leave to add

a Monell claim for intentional infliction of emotional distress, but it erred in

denying leave to amend regarding the Pierces’ conversion claim. In addition, the

Pierces have adequately alleged a § 1983 claim for malicious prosecution, and

Detective Brashears is not entitled to qualified immunity at this early stage of the

case. Accordingly, we affirm in part and reverse the district court’s dismissal of the

Pierces’ claim for malicious prosecution against Detective Brashears and its denial

of leave to amend to add a state law claim for conversion, and remand for further

proceedings consistent with this opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


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