                    Case: 12-10817         Date Filed: 08/13/2012   Page: 1 of 9

                                                                      [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10817
                                        Non-Argument Calendar
                                      ________________________

                                D.C. Docket No. 1:11-cv-02799-TWT


SANDRA GRAY,

llllllllllllllllllllllllllllllllllllllll                            Plaintiff - Appellant,

                                                 versus

THE CITY OF ROSWELL,
PATRICK C. FERDARKO,
BRANDON CRAWFORD,
NICK MARIANI,

llllllllllllllllllllllllllllllllllllllll                       Defendants - Appellees.
                                      ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________
                                       (August 13, 2012)

Before BARKETT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
                Case: 12-10817        Date Filed: 08/13/2012       Page: 2 of 9

       Plaintiff, Sandra Gray, filed suit pursuant to 42 U.S.C. § 1983 against the

City of Roswell, (“City”) Georgia, and Officers Patrick Ferdarko, Brandon

Crawford, and Nick Mariani (“Officers,” collectively with the City, “Defendants”)

claiming violations of her Fourth and Fourteenth Amendment rights. Defendants

filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). Gray

filed a Motion for Partial Summary Judgment. The district court granted

Defendants’ motion and dismissed Gray’s motion as moot. After reviewing the

Complaint and the parties’ briefs we affirm the district court as to the City, but we

reverse the district court’s dismissal of the claims against the Officers.

                                       I. Background1

       This suit arises from the Officers’ response to a dispute at Gray’s home.

Gray permitted Gregory Pompelia to reside in her home as a guest while he

recovered from surgery because he was homeless. Gray alleges in her complaint

that there was no formal agreement between herself and Pompelia. Instead, they

had an oral agreement which required Pompelia to exhibit good behavior and

contribute a modest sum to household expenses.

       In January 2011, Pompelia began to exhibit poor behavior, and Gray


       1
         Because this is an appeal from a motion to dismiss, we take all facts pleaded in the
complaint as true and construe the facts in the light most favorable to Gray. See Belanger v.
Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009).

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ordered him to leave her home. Pompelia refused. On February 9, 2011, Gray

changed all the locks on her home and carefully removed all of Pompelia’s things

from her home. She put all of his property in the back of a pickup truck and

covered it with a tarp to protect it from the elements. She specifically alleges that

she did not damage any of Pompelia’s property in the process.

      When Pompelia returned to Gray’s home and found that he could not enter

the premises, he called the Roswell police department. Officers Ferdarko,

Crawford, and Mariani responded to the call. When Gray saw the officers

approaching her home, she opened her front door and advised the officers that the

dispute between herself and Pompelia was a “civil matter.” At some point during

the dispute, Gray gave permission for Ferdarko to enter her home.

      Inside her home, she explained to Ferdarko that Pompelia was only a guest

and that she did not want Pompelia in her home because she felt that Pompelia was

a threat to her and her property. Ferdarko insisted that she must let Pompelia back

into her home. Ferdarko informed Gray that unless she let Pomopelia back into

her home, Ferdarko would arrest her. Gray, informing the officers that she was an

attorney and knew her rights, stated that this was a purely civil matter, not a

criminal matter, and that the officers had no right to force her to permit Pompelia

back into her home.

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      One of the officers then exited the home and asked Pompelia to make a list

of property that Gray had damaged. Pompelia claimed that Gray had caused

$5,600.00 worth of damage to his property. Gray then specifically alleges in her

complaint (1) “That Defendants did not see any damage to the property, and did

not inspect the property that was in the back of Plaintiff’s truck” and (2) “That by

Defendant Ferdarko’s own admission, in his incident report, the alleged list of

damaged property included items which Ferdarko states he saw, and that he saw

no damage to said items.” Still, Ferdarko trusted Pompelia and arrested Gray on

the charge of felony criminal damage to property. The Officers then permitted

Pompelia to remain in Gray’s home while she was in jail.

                                II. Standard of Review

      We review de novo a district court’s grant of a motion to dismiss. Mills v.

Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008). “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, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted). The

plaintiff need only plead facts that permit a court “to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. The “plausibility

standard” requires a plaintiff to only show “more than a sheer possibility that a

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defendant has acted unlawfully.” Id.

                      III. Claim Against the City of Roswell

      Gray claims that (1) the City failed to properly train the Officers, (2) the

Officers actions were within the policy, practice, custom, or procedure of the City,

(3) the City ratified the Officers’ conduct, and (4) all City officers routinely violate

the Fourth and Fourteenth Amendments.

      In Monell v. Department of Social Services of City of New York, 436 U.S.

658, 98 S. Ct. 2018 (1978), the Supreme Court explained the boundaries of

municipal liability under § 1983. A municipality may only be held liable for the

actions of law enforcement officers when official policy or custom causes the

constitutional violation. Id. at 694, 98 S. Ct. at 2037–38. Gray does not recite any

facts or policies which would support a claim against the City. Gray only makes

“[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements.” Iqbal, 556 U.S. at 678, 126 S. Ct. at 1949. This is not

sufficient to survive a motion to dismiss, and the district court properly dismissed

the claims against the City.

                          IV. Claim Against the Officers

      The district court found that the Officers were protected from Gray’s claims

by qualified immunity. An officer is not entitled to qualified immunity when,

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acting in his discretionary capacity, he violates clearly established constitutional

or federal law of which a reasonable person would have known. See Koch v.

Rugg, 221 F.3d 1283, 1294 (11th Cir. 2000). When responding to Pompelia’s call,

the Officers were acting in their discretionary capacity as law enforcement

officers. Therefore, our analysis focuses on whether Gray’s Complaint alleges

facts sufficient to support a claim that the Officers violated clearly established law.

See Rehberg v. Paulk, 611 F.3d 828, 838–39 (11th Cir. 2010). We decide

whether the facts alleged in the Complaint show a violation of clearly established

law by “(1) defining the official’s conduct, based on the record and viewed most

favorably to the non-moving party, and (2) determining whether a reasonable

public official could have believed that the questioned conduct was lawful under

clearly established law.” Koch at 1295–96 (footnote omitted).

      “A warrantless arrest is constitutionally valid only when there is probable

cause to arrest.” Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003) (citing

United States v. Watson, 423 U.S. 411, 417, 96 S. Ct. 820 (1976)). An officer has

probable cause to arrest if the “arrest is objectively reasonable based on the totality

of the circumstances.” Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir.

2004). An arrest is objectively reasonable when “the facts and circumstances

within the officer’s knowledge, of which he or she has reasonably trustworthy

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information, would cause a prudent person to believe, under the circumstances

shown, that the suspect has committed . . . an offense.” Id. (emphasis added). An

officer may not “conduct an investigation in a biased fashion or elect not to obtain

easily discoverable facts.” Id. at 1229 (finding that information that could be

uncovered by searching a truck for drugs and interviewing available witnesses

constituted “easily discoverable facts”). Although an officer is not required to

eliminate every theoretical possibility, an officer may not “turn[] a blind eye to

immediately available exculpatory information.” Id. at 1229 n. 10.

      Here, the Officers must show that they had probable cause to arrest Gray for

criminal damage to property. In Georgia, criminal damage to property in the

second degree occurs when a person “(1) Intentionally damages any property of

another person without his consent and the damage thereto exceeds $500.00; or (2)

Recklessly or intentionally, by means of fire or explosive, damages property of

another person.” O.C.G.A. § 16-7-23. The Officers only basis for asserting

probable cause to arrest Gray was Pompelia’s claim that Gray caused $5,600.00

worth of damage to his property. Gray alleges in her Complaint that she carefully

removed Pompelia’s property from her house and did not damage any of his

property. She further alleges that at the time of her arrest Ferdarko knew that at

least some of the property that Pompelia claimed was damaged was not actually

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damaged. Assuming that this is true and drawing all inferences in favor of Gray,

as we must, the Officers knew of exculpatory evidence and “failed to investigate

both sides of the story.” Kingsland, 382 F.3d at 1229. The Officers, after learning

that some of the property was not damaged, were no longer justified in relying

solely on Pompelia’s claims. At that point, a reasonable officer would, at the very

least, further investigate to see if Gray had actually damaged any property. This is

especially true when the investigation into the allegedly damaged property only

required the Officers to ask Pompelia to show them his damaged property. See id.

It is a reasonable inference from the Complaint that the Officers had reason to

believe that Pompelia was not providing “reasonably trustworthy information.”

Therefore, the Officers did not have probable cause to arrest Gray until they

verified some of Pompelia’s statements. Thus, at this stage of the proceedings, the

Officers are not entitled to qualified immunity.2

                                       V. Conclusion

       We affirm the grant of the motion to dismiss as to the City. We reverse the

granting of the motion to dismiss as to the Officers, because based on the



       2
          Both parties make arguments regarding the exclusive method that a landlord may use to
evict a tenant under O.C.G.A. § 44-7-50 et seq. However, these arguments are irrelevant,
because to be eligible for qualified immunity the Officers must show that they had probable
cause to arrest Gray for criminal damage to property in the second degree, O.C.G.A. § 16-7-23.

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Complaint, Gray “state[d] a claim upon which relief can be granted.” Fed. R. Civ.

P. 12(b)(6).

      AFFIRMED IN PART AND REVERSED IN PART.




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