                                                           [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                 FILED
                                                          U.S. COURT OF APPEALS
                                 No. 09-10434               ELEVENTH CIRCUIT
                                                              AUGUST 12, 2009
                             Non-Argument Calendar
                                                             THOMAS K. KAHN
                           ________________________
                                                                  CLERK

                         D. C. Docket No. 07-00069-CV-2

MALISSA L. BROWN,
                                                                  Plaintiff-Appellee,

                                        versus

BILL SMITH,
Individually and in his Official Capacity as
Sheriff of Camden County, Georgia, et al.,
                                                                        Defendants,
CHARLES BYERLY,
Individually and in his Official
Capacity as Deputy Sheriff of
Camden County, Georgia,
                                                            Defendant-Appellant.
                           ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                        _________________________

                                   (August 12, 2009)

Before BLACK, CARNES and WILSON, Circuit Judges.

PER CURIAM:
      This case arose out of Malissa Brown’s arrest and incarceration for

allegedly writing bad checks to Keith Purcell. After she was released from a

Florida jail, Brown sued, among others, Camden County Deputy Sheriff Charles

Byerly, and Keith Purcell, asserting federal and state law claims. Byerly appeals

from the district court’s order partially granting and partially denying his motion

for summary judgment, arguing the district court erred in not dismissing the

remaining claims against him. The claims remaining after the district court order

are a 42 U.S.C. § 1983 claim for an alleged violation of the Fourth Amendment

and state law claims for false imprisonment/false arrest, intentional infliction of

emotional distress, and slander.

      The basis for Brown’s Fourth Amendment claim is her contention that she

committed no violation of law, so her arrest was without probable cause. See

Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996) (“A warrantless arrest

without probable cause violates the Fourth Amendment and forms a basis for a

section 1983 claim.”). On appeal, Byerly argues, inter alia, Brown’s § 1983 claim

is precluded because there was probable cause for her arrest. “Probable cause

exists when the facts and circumstances within the officers’ 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, is

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committing, or is about to commit an offense.” Jordan v. Mosley, 487 F.3d 1350,

1355 (11th Cir. 2007) (internal quotation marks omitted).

      Byerly argues there was sufficient probable cause to support Brown’s arrest

for deposit account fraud because Brown gave Purcell three postdated checks over

a period of several weeks in exchange for goods and all of the checks were

returned due to insufficient funds. We agree. To commit the offense of deposit

account fraud, Georgia law requires that a person “makes, draws, utters, executes,

or delivers an instrument for the payment of money on any bank or other

depository in exchange for a present consideration or wages, knowing that it will

not be honored by the drawee.” O.C.G.A. § 16-9-20(a). Although “the fact that

[a] post-dated check bounced is not sufficient, standing alone, to establish a

crime,” Young v. State, 594 S.E.2d 667, 668-69 (Ga. Ct. App. 2004), where one

knowingly postdates a check without sufficient funds to cover the draft, and fails

to call this fact to the attention of the payee, the drawer of the check violates the

law, see Galbreath v. State, 387 S.E.2d 915, 919 (Ga. Ct. App. 1989).

      Even if we accept as true Brown’s contention that the postdated checks

delivered in April and May were given to Purcell for goods she received in March

and April, this delay was not enough to insulate Brown from liability for deposit

account fraud under Georgia law. “‘[P]resent consideration’ may exist although

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goods or services are received before a check is delivered in payment, where the

interval is slight and the exchange can be characterized as a single

contemporaneous transaction.” Bowers v. State, 285 S.E.2d 702, 703 (Ga. 1982).

On de novo review, we conclude as a matter of law there was probable cause for

Brown’s arrest for the crime of deposit account fraud, under the facts and

circumstances known to Byerly. See Jordan, 487 F.3d at 1355. In the absence of

a constitutional violation, the district court erred in not granting Byerly summary

judgment on the § 1983 claim.

       We remand the remaining state law claims to the district court for its

determination in light of our conclusion that probable cause existed.1

       REVERSED and REMANDED.




       1
         We are not suggesting the district court must retain jurisdiction over the state law claims
in the absence of any federal claim. If the court does retain jurisdiction, we note the claim
against Byerly for false arrest would be precluded by the existence of probable cause. See
Pinkston v. City of Albany, 395 S.E.2d 587, 590 (Ga. Ct. App. 1990); O.C.G.A. § 51-7-1.
However, if the court finds Brown also stated a claim for false imprisonment, “[t]he existence of
probable cause . . . is not a complete defense.” Kline v. KDB, Inc., 673 S.E.2d 516, 518 (Ga. Ct.
App. 2009).

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