              Case: 16-10159    Date Filed: 05/16/2016   Page: 1 of 6


                                                            [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-10159
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 4:14-cv-00332-RH-CAS



RONALD DAVID JONES,

                                                               Plaintiff-Appellant,

                                      versus

MICAH BROWN,
Commissioner District Two, et al.,

                                                                        Defendants,

T. BRYANT,
Police Sargent,
A. CENTENO,
Police Officer,

                                                            Defendants-Appellees.

                           ________________________

                    Appeal from the United States District Court
                        for the Northern District of Florida
                          ________________________
                                 (May 16, 2016)
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Before TJOFLAT, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:

      In his third amended complaint, which he brought pro se and in forma

pauperis, Ronald David Jones sought damages under 42 U.S.C. § 1983 against T.

Byant and A. Centeno, police officers in Quincy, Florida, for false arrest and

malicious prosecution in violation of the Fourth and Fourteenth Amendments.

Acting sua sponte, the district court, adopted the magistrate judge’s

recommendation and dismissed these claims with prejudice for failure to state a

claim for relief. See Fed. R. Civ. P. 12(b)(6). Jones appeals, arguing that he

stated a claim against the officers for false arrest and malicious prosecution,

stemming from an unsupported charge of theft of utility services.

      We review the district court’s dismissal for failure to state a claim for which

relief may be granted pursuant to § 1915(e)(2)(B)(ii) de novo, applying the same

standards that govern Federal Rule of Civil Procedure 12(b)(6). Mitchell v.

Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). Thus, we must view the complaint

in the light most favorable to the plaintiff, accepting all of the plaintiff’s well-

pleaded facts as true. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1056-

57 (11th Cir. 2007). Pro se pleadings are liberally construed and held to a less

stringent standard than pleadings drafted by attorneys. Powell v. Lennon, 914 F.2d

1459, 1463 (11th Cir. 1990). However, in order to survive a motion to dismiss, the


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plaintiff’s complaint must contain facts sufficient to support a plausible claim to

relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L.Ed.2d

868 (2009).

      In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that:

(1) a person acting under color of state law; (2) deprived him or her of a right

secured by the Constitution. 42 U.S.C. § 1983. We have previously identified

false arrest as a violation of the Fourth Amendment and a viable claim under

§ 1983. Ortega v. Christian, 85 F.3d 1521, 1525-26 (11th Cir. 1996). A claim for

false arrest arises when an arrest occurs without a warrant and without probable

cause. Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010).

When an arrest warrant has been issued, a police officer is entitled to rely on the

magistrate’s probable cause determination, as long as that reliance is objectively

reasonable. See United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 3420-

21, 82 L. Ed. 2d 677 (1984). To establish probable cause, a police officer has no

duty to investigate every possible claim of innocence. Rankin v. Evans, 133 F.3d

1425, 1435-36 (11th Cir. 1998). However, “falsifying facts to establish probable

cause is patently unconstitutional.” Kingsland v. City of Miami, 382 F.3d 1220,

1232 (11th Cir. 2004).

      We have also identified malicious prosecution as a viable constitutional tort

under § 1983. See Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). A plaintiff

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must prove the elements of the common law tort of malicious prosecution and that

his or her Fourth Amendment right to be free from unreasonable seizures was

violated. Id. Florida law sets out six elements for a malicious prosecution claim:

(1) an original judicial proceeding against the present plaintiff was commenced or

continued; (2) the present defendant was the legal cause of the original proceeding;

(3) the termination of the original proceeding constituted a bona fide termination of

that proceeding in favor of the present plaintiff; (4) there was an absence of

probable cause for the original proceeding; (5) there was malice on the part of the

present defendant; and (6) the plaintiff suffered damages as a result of the original

proceeding. Kingsland, 382 F.3d at 1234 (citing Durkin v. Davis, 814 So.2d 1246,

1248 (Fla. Dist. Ct. App. 2002)). Thus, a plaintiff must allege that the defendant

acted without probable cause as a required element of a malicious prosecution

claim. Wood, 323 F.3d at 882.

      Under Florida law, a person commits the offense of utility theft when he or

she “use[s] or receive[s] the direct benefit from the use of a utility knowing, or

under such circumstances as would induce a reasonable person to believe, that such

direct benefits have resulted from any tampering with, altering of, or injury to any

connection, wire, conductor, meter, pipe, conduit, line, cable, transformer,

amplifier, or other apparatus or device owned, operated, or controlled by such

utility, for the purpose of avoiding payment.” Fla. Stat. § 812.14(2)(c).

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      As to Officer Bryant, Jones alleged that Bryant acted pursuant to a warrant,

yet Jones failed to allege facts indicating that a prudent officer in Bryant’s position

would not have relied upon the arrest warrant. The only possible allegation was

that Officer Bryant should not have relied on a warrant that was almost five years

old, but that did not necessarily render the warrant facially invalid. See Pickens v.

Hollowell, 59 F.3d 1203, (11th Cir. 1995) (five year difference between issuance

of arrest warrant for misdemeanor and arrest did not negate arguable probable

cause). Without any arguments that the warrant was invalid on its face, we must

assume that Officer Bryant was entitled to rely on the warrant’s probable cause

determination. See Leon, 468 U.S. at 922, 104 S. Ct. at 3420-21.

      Against Officer Centeno, Jones alleged that the utility company employees

lied to Officer Centeno when they told him that Jones’s utilities should have been

turned off, but Jones does not allege that Officer Centeno should not have believed

the employees. Jones’s specific allegations that Officer Centeno falsified

information in his probable cause narrative, which he raised for the first time in his

objections to the magistrate’s report, do not go far enough to negate probable

cause. The only relevant allegation is that the lock tag on his utility meter was still

in place, indicating that the meter had not been tampered with. However,

tampering with a meter is not the only way to commit theft of utilities. See Fla.

Stat. § 812.14(2)(c) (“. . . tampering with, altering of, or injury to any connection,

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wire, conductor, meter, pipe, conduit, line, cable, transformer, amplifier, or other

apparatus or device . . .”) (emphasis added). Jones’s conclusory statement that

Officer Centeno did not fully investigate the case is without merit. Officer

Centeno interviewed two utilities employees who told him that the utilities running

to Jones’s house were turned off, and Officer Centeno attempted to verify

independently that the utilities were nevertheless still running. Thus, Jones did not

sufficiently allege in his final amended complaint that Officer Centeno did not

have probable cause to suspect that utility theft had occurred.

      Because the final amended complaint, on its face, indicated that Officers

Bryant and Centeno had sufficient probable cause, Jones’s third amended

complaint failed to allege one of the required elements of both false arrest and

malicious prosecution.

      AFFIRMED.




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