             Case: 17-12794     Date Filed: 12/03/2018   Page: 1 of 7


                                                             [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 17-12794
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:16-cv-24433-FAM


GREGORY WOODEN,

                                                               Plaintiff-Appellant,

                                     versus

ALFREDO ARMENTEROS,
Detective Shield #7787,
Agency 30, Metro Dade Police,

                                                              Defendant-Appellee.

                        ________________________

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

                                (December 3, 2018)

Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Gregory Wooden, a state prisoner proceeding pro se, filed a civil-rights

lawsuit under 42 U.S.C. § 1983 alleging that Detective Alfredo Armenteros

wrongfully obtained his arrest by falsifying information in a probable-cause affidavit

for a search warrant. In his complaint, Wooden alleged that Armenteros falsely

stated in the affidavit that he personally observed Wooden sell cocaine from a

residence to a confidential informant,1 when, in fact, Wooden was working during

the time of the alleged sale and Armenteros later admitted in his deposition that he

did not observe the drug transaction, contrary to what he had stated in his official

report. Wooden was arrested during the search of the residence, but the charges for

sale of cocaine were later dismissed.

       The district court, upon the recommendation of a magistrate judge, sua sponte

dismissed Wooden’s complaint for failure to state a claim on which relief can be

granted, pursuant to 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(ii), without

granting leave to amend. According to the district court, Armenteros’s allegedly

false statement did not affect the probable-cause determination because, “under any

fair reading of Plaintiff’s complaint, Det. Armenteros did in fact send a [confidential

informant] to the residence at issue, and that [confidential informant] did make a


       1
          During the course of the district-court proceedings, Wooden also filed a copy of
Armenteros’s affidavit, which states, “I followed the ‘CI’ directly to the residence and observed
the ‘CI’ arrive at the residence. The ‘CI’ met with Mr. Wooden and after a brief conversation
handed him $20 of OAF. Mr. Wooden then responded to an undetermined location within the
residence and approximately 1 minute later exited and handed the ‘CI’ suspect cocaine. I
maintained a continual surveillance of the ‘CI.’”
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controlled buy.” So, the court reasoned, Armenteros observed someone sell cocaine

from the residence, even if that person was not Wooden. The court also noted that

Wooden failed to allege that Armenteros knew that Wooden was not the person from

whom the confidential informant purchased cocaine.

      On appeal, Wooden argues that he should have been given at least one

opportunity to amend his complaint before dismissal of his lawsuit. He maintains

that he provided additional facts in support of his claim—specifically that

Armenteros intentionally falsified facts in the search-warrant affidavit—in his

objections to the magistrate judge’s report and recommendation.

      We review de novo a district court’s sua sponte dismissal under 28 U.S.C.

§§ 1915A(b)(1) and 1915(e)(2)(B)(ii) for failure to state a claim. Leal v. Georgia

Dep't of Corr., 254 F.3d 1276, 1278–79 (11th Cir. 2001). We review a district

court’s decision regarding leave to amend a complaint for an abuse of discretion, but

its underlying conclusion of whether a particular amendment would be futile is

reviewed de novo. Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005).

      Under § 1915(e)(2)(B)(ii), the district court must dismiss the complaint of a

plaintiff proceeding in forma pauperis if the court determines that the complaint fails

to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

Similarly, under § 1915A, the district court must dismiss the complaint of a prisoner




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seeking redress from a governmental authority that fails to state a claim on which

relief may be granted. 28 U.S.C. § 1915A(b)(1).

      To avoid dismissal for failure to state a claim, a complaint must include

sufficient factual content to allow the court to draw the reasonable inference that the

defendant is liable for the alleged misconduct. Waldman v. Conway, 871 F.3d 1283,

1289 (11th Cir. 2017). The allegations in the complaint must be accepted as true

and construed in the plaintiff’s favor. Id. A pro se pleading is held to a less stringent

standard than a pleading drafted by an attorney and is liberally construed, but it

“must still suggest that there is at least some factual support for a claim.” Id.

      A district court should freely give leave to amend “when justice so requires.”

Fed. R. Civ. P. 15(a)(2); see Perez v. Wells Fargo N.A., 774 F.3d 1329, 1340 (11th

Cir. 2014). In addition, a pro se plaintiff “must be given at least one chance to amend

the complaint before the district court dismisses the action with prejudice,” at least

where a more carefully drafted complaint might state a claim. Bank v. Pitt, 928 F.2d

1108, 1112 (11th Cir. 1991) (emphasis added), overruled in part by Wagner v.

Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc)

(holding that this rule does not apply to counseled plaintiffs). This is true even where

the plaintiff does not seek leave to amend until after the district court enters final

judgment. Id. In evaluating whether a pro se plaintiff should be granted leave to

amend his complaint, we may consider facts asserted by the plaintiff in objections


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to the magistrate judge’s report and recommendation. Boxer X v. Harris, 437 F.3d

1107, 1112 n.4 (11th Cir. 2006).

      Leave to amend need not be granted when amendment would be futile. Hall

v. United Ins. Co. of Am., 367 F.3d 1255, 1262–63 (11th Cir. 2004) (“[D]enial of

leave to amend is justified by futility when the complaint as amended is still subject

to dismissal.”). If the issue of futility is close, we err on the side of generosity to the

plaintiff. O’Halloran v. First Union Nat’l Bank of Fla., 350 F.3d 1197, 1206 (11th

Cir. 2003).

      The Fourth Amendment requires that warrant applications contain sufficient

information to establish probable cause. Holmes v. Kucynda, 321 F.3d 1069, 1083

(11th Cir. 2003). Although the information in a warrant affidavit need not be

objectively accurate, the affiant must believe or accept that it is true.               Id.

Accordingly, a police officer may be held liable under § 1983 for knowingly making

false statements in a warrant affidavit. Id. To be actionable, the false statements

must be material to the probable-cause determination. See Dahl v. Holley, 312 F.3d

1228, 1235 (11th Cir. 2002) (“[T]he warrant is valid if, absent the misstatements or

omissions, there remains sufficient content to support a finding of probable cause.”).




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       Here, we conclude that the district court erred when it dismissed Wooden’s

lawsuit without providing him with an opportunity to amend his complaint.2

Initially, we note that the district court is correct that, if a cocaine sale in fact

occurred from the residence where Wooden was later arrested, the identity of the

dealer is not particularly relevant to the determination of probable cause to search

the residence for contraband. Regardless of the identity of the seller, the fact that a

cocaine sale occurred at the residence would remain.                    So absent the false

identification of Wooden, the search warrant likely would still be valid because the

sale itself may have provided “sufficient content to support a finding of probable

cause.” See Dahl, 312 F.3d at 1235.

       But Wooden did not allege that a cocaine sale in fact occurred, even if he

summarized Armenteros’s statements to that effect. So we cannot accept the truth

of that fact. And Wooden’s allegations otherwise reflect that he was not present at

the residence during the purported cocaine sale and that Armenteros did not actually

observe him at the residence. In addition, in his objections to the R&R, Armenteros

asserted that “[t]he State Attorney found Det. Armenteros lied in his affidavit and

later change[d] his story during deposition.” In the light most favorable to Wooden,

these allegations support Wooden’s claim that Armenteros intentionally lied in the


       2
        Wooden does not argue that his complaint, as written, stated a claim on which relief could
have been granted. Accordingly, we limit our discussion to whether granting leave to amend
would have been futile.
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warrant affidavit in order to frame Wooden for selling cocaine. They also make it

conceivable that Armenteros falsified more than just the identity of the dealer, and

that Armenteros subsequently arrested Wooden despite knowing that he did not sell

cocaine to a confidential informant. In light of the facts alleged both in Wooden’s

complaint and his objections to the magistrate judge’s report and recommendation,

and erring on the side of generosity to a pro se plaintiff, we cannot say that it would

be futile to allow “at least at least one chance to amend the complaint before the

district court dismisses the action with prejudice.”3 See Bank, 928 F.2d at 1112.

       Accordingly, we VACATE and REMAND for further proceedings.




       3
          The district court appears to have concluded that granting leave to amend would be futile
because Wooden “would never be able to overcome Det. Armenteros’ entitlement to qualified
immunity.” However, “[q]ualified or ‘good faith’ immunity is an affirmative defense that must be
pleaded by a defendant official.” Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). Because
Armenteros was not served with the complaint and did not file a motion to dismiss raising the
affirmative defense of qualified immunity, we do not consider that defense at this early stage.
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