            Case: 17-15015    Date Filed: 08/20/2018   Page: 1 of 9


                                                           [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT



                               No. 17-15015
                           Non-Argument Calendar



                    D.C. Docket No. 1:17-cv-01349-ODE

SANDRA R. GREEN,
JEROME R. GREEN,

                                                          Plaintiffs - Appellants,

                                    versus

CITY OF LAWRENCEVILLE, GEORGIA,
JOHN W. ANDERSON,
in his individual capacity,

                                                         Defendants - Appellees.



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



                              (August 20, 2018)

Before WILLIAM PRYOR, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:

     Sandra Green could not have imagined that, months after her debit card was
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stolen, she and her brother would be arrested for card fraud. To be sure, they were

innocent; after the charges were dismissed, the Greens sued the investigating

detective and his employer, the City of Lawrenceville, under 42 U.S.C. § 1983 and

Georgia law for unlawful arrest and malicious prosecution. The district court

dismissed their complaint for failure to state a claim, and they now appeal. Because

the Greens’ complaint established that Detective Anderson had probable cause to

arrest them under the circumstances, we affirm.

                                                I

       We summarize the following facts from the Greens’ first amended

complaint, which we take as true for the purposes of our review. Following the

theft of Sandra’s debit card and checkbook, thieves used Sandra’s closed accounts

to make tens of thousands of dollars’ worth of fraudulent purchases, often using a

“forced transaction” technique. 1 On one such occasion, a woman posing as Sandra

Green and a man posing as her husband made a forced-transaction purchase at

Sosebee’s Auto Supply in Lawrenceville, Georgia. Detective Anderson of the City

of Lawrenceville Police Department began investigating after the fraud was

discovered. The store owner reported that “Sandra” was a black woman with a

1
 In a “forced sale” or “forced transaction” scam, the perpetrator attempts to pay for a store
purchase with an invalid credit or debit card, which the store’s payment system declines. The
perpetrator then purports to call the card issuer (sometimes actually calling a confederate who
will speak to the store employee) and provides a fake authorization code that forces the system to
override the denial and accept the sale. The fraud is eventually discovered when the card issuer
charges back the transaction.

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short afro hairstyle, 5'8" tall, and 35 to 40 years old, and that her “husband” was a

black man, 6'0" tall, 180 pounds, and 35 to 40 years old. Detective Anderson

prepared photo arrays containing pictures of, among others, the real Sandra and

Jerome Green. 2 The store owner identified Sandra and Jerome as the thieves after

Anderson indicated that the suspects were in the arrays and that they were brother

and sister.

       Later that day, Detective Anderson obtained warrants for the arrest of

Sandra and Jerome for financial transaction card fraud, O.C.G.A. § 16-9-33.

Meanwhile, the thieves continued making forced transactions and bouncing checks

all over Georgia and Alabama. Sandra dutifully filed police reports when her bank

notified her of attempts to use her account, and several law enforcement agencies

investigated the crimes of “Sandra Green” and her associates. On at least two

instances, Detective Anderson was included in email messages to multiple

agencies regarding “a Sandra Green case.” The real thieves were eventually

arrested and convicted in other jurisdictions.

       But in the meantime, Detective Anderson’s warrants for the Greens

remained active. The first officers who went to arrest Sandra decided not to do so

after she explained that her card had been stolen and she showed them her


2
 Sandra is a 5'3" tall black woman who was 23 years old and had long, straight hair; her brother
Jerome is a black man who was 26 years old.

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collection of police reports. Sandra then arranged for a meeting with Detective

Anderson, where she again explained that her card had been stolen and showed her

police reports. She also provided alibis for herself and Jerome and noted that

another investigator had told her they had identified, but not yet arrested, a suspect.

Detective Anderson did not believe her. Sandra and Jerome were both eventually

arrested; the charges against them were administratively dismissed nearly three

years later.

       The Greens sued Detective Anderson under 42 U.S.C. § 1983 for unlawful

seizure and malicious prosecution in violation of the Fourth Amendment, and

under state law for malicious prosecution, O.C.G.A. § 51-7-40, demanding

punitive damages and attorney’s fees. They sued the City of Lawrenceville for

municipal liability for Detective Anderson’s violations of state law. Detective

Anderson and the City moved to dismiss the complaint for failure to state a claim,

Fed. R. Civ. P. 12(b)(6), and the district court granted the motion, dismissing the

complaint with prejudice. The Greens then moved to alter or amend the judgment,

Fed. R. Civ. P. 59(e), to allow them to amend their complaint, and the district court

denied the motion because amendment would be futile. The Greens now appeal.

                                          II

       We agree with the district court that the Greens’ complaint failed to state a

claim for malicious prosecution. We review a dismissal for failure to state a claim


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de novo. Mikko v. City of Atlanta, 857 F.3d 1136, 1141–42 (11th Cir. 2017). A

claim for malicious prosecution 3 under § 1983 and Georgia law requires showing

“(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.” Kjellsen v. Mills,

517 F.3d 1232, 1237 (11th Cir. 2008) (quoting Wood v. Kesler, 323 F.3d 872,

881–82 (11th Cir. 2003)). “Because lack of probable cause is a required element,

. . . the existence of probable cause defeats the claim.” Id. Probable cause to arrest

exists when “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.” Wood, 323 F.3d at 878 (quoting Rankin v. Evans, 133 F.3d 1425, 1435

(11th Cir. 1998)).

       The factual content of the Greens’ complaint actually establishes that

Detective Anderson had probable cause to arrest them, despite its assertion that

Detective Anderson lacked probable cause—the kind of “formulaic recitation of

the elements of a cause of action [that] will not do.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007). The Greens must instead plead “factual content that

3
  The district court dismissed the Greens’ claim for unlawful seizure because the proper § 1983
claim when a plaintiff is arrested with a warrant is malicious prosecution, not false arrest. See
Whiting v. Traylor, 85 F.3d 581, 585 (11th Cir. 1996). The Greens have not appealed this issue.

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allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). They have not.

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

support for probable cause.” Rankin, 133 F.3d at 1441. Detective Anderson

properly relied not only on the store owner’s complaint that Sandra Green and

another person committed card fraud, but also on the owner’s visual identification

of Sandra and Jerome. Cf. Morris v. Albertson’s, Inc., 705 F.2d 406, 408 (11th Cir.

1983). The Greens alleged that Detective Anderson impermissibly influenced the

identifications when he told the store owner that the suspects were in the arrays

and that they were brother and sister, but these allegations do not defeat the

probable cause that the identifications provided. The Greens have not alleged that

they bear a family resemblance, and under our precedent, mentioning that a photo

array contains a suspect, without more, is not problematic. See Cikora v. Dugger,

840 F.2d 893, 896–97 (11th Cir. 1988). The Greens also allege that Detective

Anderson later improperly ignored Sandra’s averments of innocence, but he was

entitled to disbelieve her. Marx v. Gumbinner, 905 F.2d 1503, 1507 n.6 (11th Cir.

1990). All of these circumstances caused Detective Anderson to reasonably believe

that the Greens were the perpetrators of the fraud at Sosebee’s Auto Supply.

      The Greens argue that Detective Anderson’s belief was unreasonable

because he ignored relevant information about other agencies’ investigations. We


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disagree. Although “[a]n arresting officer is required to conduct a reasonable

investigation to establish probable cause,” Rankin, 133 F.3d at 1435, he “is not

required to explore and eliminate every theoretically plausible claim of innocence

before making an arrest,” Cozzi v. City of Birmingham, 892 F.3d 1288, 1297 (11th

Cir. 2018) (quoting Kingsland v. City of Miami, 382 F.3d 1220, 1229 (11th Cir.

2004)). What the complaint alleges that Detective Anderson knew before he

obtained the warrants—two emails from other law enforcement agencies about “a

Sandra Green case”—supports the reasonableness of investigating and arresting

Sandra. Unlike the officers in Kingsland and Cozzi, whom we faulted for failing to

obtain “easily discoverable facts” right under their noses before making

warrantless arrests, id., Anderson conducted a reasonable investigation of the crime

at Sosebee’s Auto Supply before applying for an arrest warrant. He was not

required to “take ‘every conceivable step . . . to eliminate the possibility of

convicting an innocent person.’” Rankin, 133 F.3d at 1436 (quoting Tillman v.

Coley, 886 F.2d 317, 321 (11th Cir. 1989)).

      All told, the Greens’ allegations establish that the commission of card fraud

in the name of Sandra Green, together with the store owner’s identification of

photographs of Sandra and Jerome as the perpetrators, gave Detective Anderson

probable cause to obtain a warrant for the Greens’ arrest. Because the Greens’

complaint establishes no basis for recovery against Detective Anderson under


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§ 1983 or Georgia law, we also affirm the dismissal of the complaint for failure to

state a claim against the City of Lawrenceville for municipal liability for

Anderson’s conduct.

                                          III

      The district court did not abuse its discretion when it denied the Greens’

post-judgment motion to amend their complaint. We review the denial of a motion

to amend for abuse of discretion, although if the motion was denied based on an

issue of law, we review that decision de novo. U.S. EEOC v. St. Joseph’s Hosp.,

Inc., 842 F.3d 1333, 1343 (11th Cir. 2016).

      We encourage district courts to liberally grant plaintiffs leave to amend

complaints even after dismissal, but they are not required to do so following a

dismissal with prejudice. Czeremcha v. Int’l Ass’n of Machinists, AFL–CIO, 724

F.2d 1552, 1556 & n.6 (11th Cir. 1984). Leave to amend may be denied when, as

here, such amendment would be futile. Spanish Broad. Sys. of Fla., Inc. v. Clear

Channel Commc’ns, Inc., 376 F.3d 1065, 1077 (11th Cir. 2004). We agree with the

district court that the Greens’ Rule 59(e) motion sought only to restate already-

pleaded facts and to reiterate already-rejected arguments. Their proposed

amendment would not have defeated the probable cause that their other allegations

established. The district court acted within its discretion when it denied this legally

futile amendment.


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                                         IV

      We appreciate that the ordeal of being arrested, the humiliation of being

accused, and the threat of being prosecuted added great insult to the injury Sandra

suffered when she was robbed and impersonated. But “[t]he Constitution does not

guarantee that only the guilty will be arrested. If it did, § 1983 would provide a

cause of action for every defendant acquitted—indeed, for every suspect released.”

Baker v. McCollan, 443 U.S. 137, 145 (1979). Because § 1983 does not allow the

Greens to recover on the basis of these allegations, the judgment of the district

court is AFFIRMED.




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