          Case: 14-14063   Date Filed: 04/08/2015   Page: 1 of 25


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14063
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 1:13-cv-03711-SCJ


JOHN ELMORE, JR.,

                                                           Plaintiff-Appellant,

                                 versus

FULTON COUNTY SCHOOL DISTRICT,
DEMARCOS HOLLAND,
NICOLE K. SAUCE,

                                                        Defendants-Appellees.

                       ________________________

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

                             (April 8, 2014)

Before MARCUS, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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       John Elmore, Jr., appeals the dismissal of his amended civil-rights

complaint, under 42 U.S.C. § 1983, alleging that he was illegally arrested and

denied equal-protection rights in violation of the Fourth and Fourteenth

Amendments. In this appeal, we are asked to determine whether the police officer

who prepared affidavits for Elmore’s arrest is entitled to qualified immunity, and

whether Elmore stated a claim of supervisor liability against the principal of the

school in which the officer worked. After careful consideration, we affirm the

dismissal of Elmore’s amended complaint.

                                               I.

       Elmore was employed by the Fulton County School District (the “District”)

as a paraprofessional educator.1 In that capacity, he assisted a classroom teacher in

a class with moderately to severely disabled students. One student, who was

wheelchair-bound and non-verbal, had a history of biting and scratching himself

whenever he got angry or frustrated. The student would also bite at others if they

attempted to stop him.

       On December 7, 2011, the student began scratching himself in class. To

distract him and to stop him from scratching, according to the amended complaint,

the teacher, Ms. Morrow, lightly sprayed the student with a fine mist of water. A

       1
          We present the facts as alleged in the complaint, accepting the factual allegations as
true and construing all reasonable inferences in Elmore’s favor. Butler v. Sheriff of Palm Beach
Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012).


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special-needs nurse who had been meeting with the teacher saw the spraying. The

nurse later determined that she had witnessed child abuse and made a complaint.

      Nicole Sauce2, a police officer for the District, investigated the nurse’s

complaint. Initially, Sauce prepared a memorandum. The entire allegation in the

memo stated, “Teacher was observed by special needs nurse spraying a special

needs student in the face for acting out in class.”

      Sauce then conducted several interviews regarding the incident.              These

interviews, which involved at least four witnesses—the classroom teacher, Elmore,

the nurse, and a student—concerned, among other issues, who, if anyone, had

sprayed the student. The classroom teacher, Ms. Morrow, specifically stated that

Elmore had not sprayed the student with water.                 Elmore denied spraying the

student and stated that the spray bottle was used to demonstrate various things like

rain. Sauce later falsely stated that Elmore had admitted spraying the student. 3

      After Sauce’s investigation, the principal of the school, Demarcos Holland,

made a complaint against Elmore, alleging child abuse. Holland directed Sauce to

obtain a warrant for Elmore’s arrest.               Sauce did so without revealing the

exculpatory information provided by Ms. Morrow. A Georgia state magistrate

judge issued two warrants for Elmore’s arrest, one for “Cruelty to Children,”



      2
          At the time of the incident, Sauce’s last name was “Wright.”
      3
          It is not clear to whom Sauce made this statement.
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O.C.G.A § 16-5-70, and one for “Simple Battery,” O.C.G.A. § 16-5-23. In the

affidavits for each warrant, Sauce swore that Elmore

               did spray a severe and profound juvenile repeatedly
               about the arms and face because he was agitated that the
               radio was turned down. [Elmore] used the spray to try
               any [sic] stop the juvenile from screaming only to further
               agitate him. . . . The incident took place in the presence
               of two witnesses, a cluster nurse and a student that
               confirmed the incident.

Elmore was arrested and charged with cruelty to children in the third degree and

simple battery. As a result, Elmore was fired by Holland and the District.

                                               II.

       Elmore filed his complaint, which he later amended, in the United States

District Court for the Northern District of Georgia. Elmore’s amended complaint

asserted two causes of action under § 1983, alleging violations of the Fourth

Amendment for “illegal arrest” (against Sauce and Holland in their individual

capacities), and violations of the Fourteenth Amendment for the denial of his

equal-protection rights (against Holland and the District).4 The defendants moved

to dismiss the amended complaint for failure to state a claim under Rule 12(b)(6),

Fed. R. Civ. P. Sauce invoked the defense of qualified immunity.



       4
          Elmore does not challenge the district court’s dismissal of his claim against Holland
and the District alleging the denial of his equal-protection rights. He also does not challenge the
denial of his motion to amend his complaint with respect to these claims. We therefore deem
Elmore’s equal-protections claims abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 680-81 (11th Cir. 2014) (stating that issues not raised on appeal are abandoned).
                                                4
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      Elmore responded that Sauce was not entitled to qualified immunity because

she withheld material, exculpatory information in order to obtain the arrest

warrants, in violation of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978).

Elmore also asserted that Sauce was not entitled to qualified immunity because the

actions he allegedly committed were entitled to complete immunity under

O.C.G.A. § 20-2-1001, which grants educators immunity from criminal liability for

student discipline. Elmore argued that Holland was liable for ordering his arrest.

      The district court granted the defendants’ motion to dismiss. The court

determined that Sauce was entitled to qualified immunity. According to the district

court, even if Sauce had included the exculpatory information, the warrant affidavit

still established probable cause to arrest Elmore for the offense of simple battery.

And, the court concluded, probable cause for simple battery rendered his arrest

valid despite a lack of probable cause for cruelty to children in the third degree.

Further, the court found, Elmore’s claim of immunity under O.C.G.A. § 20–2–

2001 was an affirmative defense that did not factor into the probable-cause

assessment. The court also determined that Elmore’s claim against Holland failed

because Elmore did not allege that Holland was Sauce’s supervisor, nor did he

allege sufficient factual information to show that Holland directed Sauce to act in

violation of Elmore’s constitutional rights. Elmore now appeals the dismissal of

his amended complaint.


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                                         III.

      We review de novo the district court’s grant of a motion to dismiss for

failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P., accepting the facts

alleged in the complaint as true and drawing all reasonable inferences in the

plaintiff’s favor. Butler v. Sheriff of Palm Beach Cnty., 685 F.3d 1261, 1265 (11th

Cir. 2012). “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)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974

(2007)).

                                         IV.

      The defense of qualified immunity aims to strike a balance between “the

need to hold public officials accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distraction, and liability when

they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231,

129 S. Ct. 808, 815 (2009).       Towards that end, qualified immunity protects

government officials engaged in discretionary functions and sued in their

individual capacities unless they violate “clearly established federal statutory or

constitutional rights of which a reasonable person would have known.” Keating v.




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City of Miami, 598 F.3d 753, 762 (11th Cir.2013) (brackets and internal quotation

marks omitted).

      Under the qualified-immunity doctrine, the official must first show that she

was engaged in a discretionary function. Maddox v. Stephens, 727 F.3d 1109,

1120 (11th Cir. 2013). It is undisputed that Sauce has established this fact.

      The burden then shifts to Elmore to demonstrate that Sauce is not entitled to

qualified immunity. See id. To do so, Elmore must show both that Sauce violated

a constitutional right and that the right was “clearly established . . . in light of the

specific context of the case, not as a broad general proposition[,]” at the time of the

alleged violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156

(2001). A right must be clearly established to ensure that “officers are on notice

their conduct is unlawful.” Id. at 206, 121 S. Ct. at 2158. In other words, the

right’s “contours must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730,

739, 122 S. Ct. 2508, 2515 (2002) (internal quotation marks omitted). We may

decide these issues in either order, but Elmore must make both showings to survive

a qualified-immunity defense. Maddox, 727 F.3d at 1120-21.

      Elmore primarily contends that Sauce is not entitled to qualified immunity

because she violated Franks by omitting material, exculpatory evidence from her

warrant affidavits. He also argues that his own immunity from criminal liability as


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an educator under Georgia law negated a finding of probable cause and that Sauce

should have disclosed his potential immunity to the magistrate. Finally, he asserts

that he may maintain a claim based on the lack of probable cause to arrest for

cruelty to children, even if probable cause existed for the offense of simple battery.

A.     Alleged Franks Violations

       In Franks, the Supreme Court held that a warrant violates the Fourth

Amendment if the affidavit supporting the warrant contains “deliberate falsity or . .

. reckless disregard” for the truth. 438 U.S. at 171, 98 S. Ct. at 2684 (concerning a

search warrant affidavit); see United States v. Martin, 615 F.2d 318, 327-29 (5th

Cir. 1980) (applying Franks to an arrest warrant affidavit). 5 However, only false

statements which are necessary to the finding of probable cause will invalidate a

warrant. Franks, 438 U.S. at 155-56, 98 S. Ct. at 2676.

       The reasoning of Franks also applies to omissions from a warrant affidavit.

Martin, 615 F.2d at 328.            “Thus, a warrant affidavit violates the Fourth

Amendment when it contains omissions made intentionally or with a reckless

disregard for the accuracy of the affidavit.” Madiwale v. Savaiko, 117 F.3d 1321,

1326-27 (11th Cir. 1997) (internal quotation marks omitted).                Without direct

evidence of intentional or reckless conduct, a plaintiff may raise an inference of

recklessness where “the facts omitted from the affidavit are clearly critical to a

       5
         All cases from the former Fifth Circuit issued before October 1, 1981, are binding on
the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
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finding of probable cause.” Martin, 615 F.2d at 329. Omissions that are made

negligently will not invalidate a warrant. Madiwale, 117 F.3d at 1327. And “even

intentional or reckless omissions will invalidate a warrant only if inclusion of the

omitted facts would have prevented a finding of probable cause.” Id.; see also

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.”).

      Elmore contends that Sauce omitted the following facts about the incident

from the warrant affidavits: (1) the nurse made no complaint at the time of the

spraying incident; (2) Sauce previously prepared a memo stating that “Teacher was

observed by special needs nurse spraying a special needs student in the face for

acting out in class”; and (3) Ms. Morrow had told Sauce that Elmore did not spray

the student. As the district court did, we proceed directly to the question of

whether Elmore’s allegations and the reasonable inferences drawn from them show

that “inclusion of the omitted facts would have prevented a finding of probable

cause.” Madiwale, 117 F.3d at 1327; see also Dahl, 312 F.3d at 1235.

      Probable cause exists when the facts and circumstances, of which the official

has reasonably trustworthy information, would cause a prudent person to believe

that the suspect has committed, is committing, or is about to commit an offense.

Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir. 2007). “No officer has a duty to


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prove every element of a crime before making an arrest. Police officers are not

expected to be lawyers or prosecutors.” Id. (citation and quotation marks omitted).

Rather, in assessing probable cause, we deal with “the factual and practical

considerations of everyday life on which reasonable and prudent [persons], not

legal technicians, act.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998)

(internal quotation marks omitted).

      Sauce made out two warrant affidavits in this case, one for simple battery

and the other for cruelty to children in the third degree. A person commits cruelty

to children in the third degree when he is the “primary aggressor” and commits a

“forcible felony, battery, or family violence battery” knowing or intending that a

child under the age of 18 will witness the act. See O.C.G.A. § 16–5–70(d). A

person commits simple battery when he either “(1) Intentionally makes physical

contact of an insulting or provoking nature with the person of another; or (2)

Intentionally causes physical harm to another.” O.C.G.A. § 16–5–23.

      Sauce swore to the same supporting facts in each affidavit.          When we

consider the facts alleged in the affidavits, as well as the omitted facts about which

Elmore complains, the universe of facts includes the following:           (1) Elmore

sprayed a severe and profound juvenile repeatedly about the arms and face because

he was agitated that the radio was turned down; (2) Elmore used the spray to try

and stop the juvenile from screaming only to further agitate him; (3) a nurse


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witnessed the student being sprayed and later made a complaint, but did not

complain at the time; (4) Sauce’s initial memorandum regarding the complaint

stated that “Teacher” sprayed the student; (5) the classroom teacher told Sauce that

Elmore did not spray the student; and (6) the nurse and a juvenile student stated

that Elmore had sprayed the student.

      We agree with the district court that the warrant affidavit does not establish

even arguable probable cause to believe that Elmore committed the crime of

cruelty to children in the third degree. The affidavit does not allege the requisite

forcible felony or battery, see, e.g., O.C.G.A. § 16–5–23.1(a) (requiring for the

offense of “battery” the intentional causing of “substantial physical harm or visible

bodily harm to another”), nor could the facts known to Sauce lead a reasonable

person to believe that a forcible felony or battery had been committed.

      But including the omitted facts when determining whether probable cause

existed to believe that Elmore committed the offense of simple battery does not

negate the probable cause that the magistrate judge found for that offense. See

Madiwale, 117 F.3d at 1327. The conduct alleged fits within the definition of

simple battery as intentional physical contact of a provoking nature with the person

of another. See O.C.G.A. § 16–5–23. And the revised affidavit provides sufficient

grounds for a prudent person, based on the facts and circumstances, to believe that

Elmore, not the classroom teacher or another person, committed the offense.


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      The revised affidavit provides that two witnesses confirmed that Elmore

sprayed the student, while the teacher and Elmore stated that he did not. Although

Sauce’s initial memo reflects that “Teacher” sprayed the student, Sauce was not

present and did not witness the incident. Moreover, Sauce is not an educator, and

Elmore, a “paraprofessional educator” could fairly have been considered or

described by her and others such as the nurse to be a “teacher.” In addition, during

the interview, the nurse apparently named Elmore as the person who had sprayed

the student.      Significantly, the nurse’s account of the incident was also

corroborated by a juvenile student.

      Nor do Elmore’s allegations provide any reason to doubt that the nurse and

the student in fact identified Elmore to Sauce. The fact that the nurse “made no

complaint at the time” does not, without more, undermine the nurse’s credibility,

particularly when we do not know the length of time between the incident and the

complaint. As for Elmore and Ms. Morrow’s conflicting statements, each arguably

had an interest in a determination that Elmore was not involved. Thus, while we

agree that it certainly would have been better for Sauce to have included the

alleged inconsistencies in the warrant affidavit, consideration of the omitted

material would not have precluded a finding of probable cause to believe that

Elmore committed the offense of simple battery.




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      In any event, even if consideration of all of the facts did not establish actual

probable cause for the offense of simple battery, the facts are adequate to establish

arguable probable cause to believe that Elmore violated O.C.G.A. § 16–5–23. See

Madiwale, 117 F.3d at 1327. Sauce conducted an investigation and interviewed

pertinent witnesses. Despite the conflicting witness statements, and even if Sauce

had been mistaken, the facts could have led a prudent officer to believe that

reasonably trustworthy information established probable cause for simple battery.

See Dahl, 312 F.3d at 1234 (“[A]rresting officers, in deciding whether probable

cause exists, are not required to sift through conflicting evidence or resolve issues

of credibility, so long as the totality of the circumstances present a sufficient basis

for believing that an offense has been committed.”); Montoute v. Carr, 114 F.3d

181, 184 (11th Cir. 1997) (explaining the “arguable probable cause” standard). In

other words, Sauce is entitled to qualified immunity because the omitted facts were

not “so clearly material that every reasonable law officer would have known that

their omission would lead to [an arrest] in violation of federal law.” Madiwale,

117 F.3d at 1327 (quotation marks omitted).

      Elmore also contends that Sauce should have disclosed to the magistrate his

status an educator and the existence of educator immunity under O.C.G.A. § 20–2–

1001. That contention assumes that Elmore’s potential immunity was relevant to

the probable-cause analysis. We turn to that question now.


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B.    Educator Immunity under Georgia Law

      Elmore asserts that the district court erroneously concluded that Elmore’s

potential immunity as an educator under Georgia law did not affect the probable-

cause analysis. Under the circumstances, we find that the district court did not err.

      Elmore claims immunity under O.C.G.A. § 20–2–1001, which provides as

follows: “An educator shall be immune from criminal liability for any act or

omission concerning, relating to, or resulting from the discipline of any student or

the reporting of any student for misconduct, provided that the educator acted in

good faith.”     O.C.G.A. § 20–2–1001(b).         Elmore’s former position as a

“paraprofessional” is included in the term “educator.” O.C.G.A. § 20–2–1001(a).

Under Georgia law, the defendant bears the burden of proving entitlement to

educator immunity under Georgia law by a preponderance of the evidence. State v.

Pickens, ___ S.E.2d ___, No. A14A1593, 2015 WL 872224, at *1 (Ga. Ct. App.

Mar. 3, 2015); State v. Cohen, 711 S.E.2d 418, 419 (Ga. Ct. App. 2011).

      In making an assessment of probable cause, officers generally have no duty

to resolve legal questions or to investigate possible defenses. See Jordan, 487 F.3d

at 1356-57; cf. Baker v. McCollan, 443 U.S. 137, 145-46, 99 S. Ct. 2689, 2695

(1979) (“[W]e do not think a sheriff executing an arrest warrant is required by the

Constitution to investigate independently every claim of innocence, whether the

claim is based on mistaken identity or a defense such as lack of requisite intent.”);


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Pickens v. Hollowell, 59 F.3d 1203, 1207 (11th Cir. 1995) (“[P]olice officers have

no responsibility to determine the viability of a statute of limitations defense when

executing a valid arrest warrant.”).

      For example, in Morris v. Town of Lexington, Alabama, 748 F.3d 1316 (11th

Cir. 2014), this Court recently concluded that the possible application of an

affirmative defense to an assault charge did not affect whether the officers had

probable cause, or at least arguable probable cause, to believe that the plaintiff had

committed an assault. Id. at 1325. Similarly, in Jordan, we held that a police

officer did not need to consider the application of an “apparent-authority defense”

before seeking the defendant’s arrest. Jordan, 487 F.3d at 1356-57. For that

reason, we declined to address whether the defense “would have provided Plaintiff

with a complete defense to the pertinent crime under Georgia law.” Id.

      Elmore cites our unpublished decision in Williams v. Sirmons, 307 F. App’x

354 (11th Cir. 2009), where we held that “in determining whether probable cause

to arrest exists, an officer must consider all facts and circumstances within that

officer’s knowledge, including facts and circumstances conclusively establishing

an affirmative defense.” Id. at 358-59; see also Fridley v. Horrighs, 291 F.3d 867,

873 (6th Cir. 2002) (“[P]robable cause determinations include facts and

circumstances establishing a statutorily legitimated affirmative justification for the

suspected criminal act.” (internal quotation marks omitted)).          According to


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Sirmons, “if an officer has knowledge of facts and circumstances which establish

an affirmative defense, he or she lacks probable cause to arrest, even when the

facts and circumstances establish that the person meets all elements of the

offense.” Sirmons, 307 F. App’x at 359.

      Applying that standard in Sirmons, we concluded that the officers did not

have even arguable probable cause to arrest the plaintiff for fleeing from a traffic

stop because, even though the plaintiff met all the elements of the offense, the

officers knew of facts—like the facts that the plaintiff was pregnant, bleeding, in

distress, and on her way to the hospital for emergency treatment—showing that the

plaintiff’s flight was justified by the affirmative defense of necessity or duress. Id.

at 359-60. Therefore, we held that the officers were not entitled to qualified

immunity. Id. at 360.

      Here, however, even if we assumed that officers generally are required to

consider statutory-immunity defenses in their probable-cause assessments, the

application of Georgia’s educator-immunity statute was not sufficiently established

in this case. The statute provides that an educator’s disciplinary actions towards

students are immune from criminal liability, provided that the educator acts in

“good faith.” O.C.G.A. § 20–2–1001(b). “‘Good faith’ is a subjective standard: a

state of mind indicating honesty and lawfulness of purpose; belief that one’s

conduct is not unconscionable or that known circumstances do not require further


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investigation.”   Pickens, 2015 WL 872224, at *5 (quotation marks omitted).

Further, the existence of good faith is a question for the trier of fact. Id.

      Although Sauce knew that Elmore was an educator and that his alleged

actions were arguably disciplinary in nature, Sauce had some reason to doubt that

Elmore was acting in “good faith.” Specifically, the nurse made an allegation that

“child abuse” had occurred in the classroom based on the spraying incident, and

Sauce apparently interviewed a juvenile student who stated that Elmore had

sprayed the student. Moreover, since Elmore altogether denied having sprayed the

student, no one asserted that Elmore had sprayed the student in good faith. Based

on these facts, we cannot say that facts known to Sauce conclusively established

that Elmore was immune from criminal liability.

      In this respect, Elmore’s reliance on Cohen is misplaced. The Georgia Court

of Appeals in Cohen upheld the trial court’s grant of immunity from prosecution

for simple battery, under O.C.G.A. § 20–2–1001, based on the trial court’s finding

that the defendant acted in good faith. Cohen, 711 S.E.2d at 419-20. But the fact

that Elmore engaged in similar conduct as the defendant in Cohen does not

establish that Elmore subjectively acted in good faith, which is a question for the

trier of fact. See Pickens, 2015 WL 872224, at *5.

      In any case, given the absence of binding precedent holding that statutory-

immunity defenses must be considered in a probable-cause determination,


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particularly a defense that turns on the subjective intent of the party claiming

immunity, we cannot say that the law was so clearly established as to have

provided fair warning to Sauce that her failure to consider, or to inform the

magistrate of, Elmore’s potential immunity in assessing whether probable cause

existed was unconstitutional. See Hope, 536 U.S. at 739, 122 S. Ct. at 2515; cf.

Jordan, 487 F.3d at 1355 (“Of course, no police officer can truly know another

person’s subjective intent.”). Indeed, even Elmore concedes that Sauce may be

entitled to qualified immunity with respect to the claim that Sauce should have

informed the magistrate of Elmore’s potential immunity under O.C.G.A. § 20–2–

1001.

C.      Whether Probable Cause to Arrest Bars Elmore’s Claims

        In resolving Elmore’s claims, the district court concluded that the existence

of probable cause to arrest Elmore for simple battery rendered his arrest

constitutionally valid, despite the lack of probable cause for cruelty to children.

The court relied on the well-established rule that the existence of probable cause

does not turn on the arresting officer’s state of mind. Devenpeck v. Alford, 543

U.S. 146, 153, 125 S. Ct. 588, 593-94 (2004). So long as the circumstances known

to the officers, viewed objectively, give probable cause to arrest for any crime, the

arrest is constitutionally valid even if probable cause was lacking as to some




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offenses, or even all announced charges. Id. at 153-55, 125 S. Ct. at 593-94; Lee v.

Ferraro, 284 F.3d 1188, 1195-96 (11th Cir. 2002).

       Elmore counters that the rule of Devenpeck applies only to warrantless

arrests. Where, as here, an arrest is made pursuant to a warrant, Elmore asserts,

probable cause must be assessed independently with respect to each warrant.

Thus, Elmore argues, he may maintain a claim based on the lack of probable cause

to arrest for cruelty to children in the third degree even if probable cause to arrest

for another offense existed.

       In general terms, a warrantless arrest without probable cause provides the

basis for a § 1983 claim for false arrest. Kingsland v. City of Miami, 382 F.3d

1220, 1226 (11th Cir. 2004); see Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3-

4 (1st Cir. 1995) (analogizing a §1983 false arrest claim to the common law tort of

false arrest). Thus, it follows that probable cause to arrest, viewed objectively,

bars a false-arrest claim. See Kingsland, 382 F.3d at 1226; Lee, 284 F.3d at 1195-

96; see also Marx v. Gumbinner, 905 F.2d 1503, 1505-06 (11th Cir. 1990 (“The

existence of probable cause . . . is an absolute bar to a section 1983 action for false

arrest.”).

       By contrast, seizures following the “institution of a prosecution,” such as an

arrest pursuant to a warrant, generally serve as the basis for a § 1983 claim for

malicious prosecution. Whiting v. Traylor, 85 F.3d 581, 585-86 (11th Cir. 1996);


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see also Calero-Colon, 68 F.3d at 4 (“As a general rule, an unlawful arrest

pursuant to a warrant will be more closely analogous to the common law tort of

malicious prosecution.”). This Circuit recognizes a § 1983 cause of action for

malicious prosecution in violation of the Fourth Amendment. Wood v. Kesler, 323

F.3d 872, 881 (11th Cir. 2003).         We have held that “[t]o establish a § 1983

malicious prosecution claim, the plaintiff must prove two things: (1) the elements

of the common law tort of malicious prosecution; and (2) a violation of his Fourth

Amendment right to be free from unreasonable seizures.”6               Grider v. City of

Auburn, Ala., 618 F.3d 1240, 1256 (11th Cir. 2010).

       Generally, in contrast to false-arrest claims, “probable cause as to one charge

will not bar a malicious prosecution claim based on a second, distinct charge as to

which probable cause was lacking.” Holmes v. Vill. of Hoffman Estates, 511 F.3d

673, 682 (7th Cir. 2007) (concerning malicious prosecution under Illinois state

law); Johnson v. Knorr, 477 F.3d 75, 83 (3d Cir. 2007); cf. Uboh v. Reno, 141 F.3d

1000, 1005 (11th Cir. 1998) (conviction on some charges in indictment does not

preclude malicious prosecution claim based on dismissal of other charges). In

Holmes, the Seventh Circuit explained the distinction in this way:               when an

individual is arrested, the seizure is the same whether the arrest was based on one
       6
          The common-law elements of malicious prosecution include the following: “(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.” Wood, 323 F.3d at 882.


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or multiple grounds; but once an individual is prosecuted, each additional charge

imposes additional costs and burdens. Holmes, 511 F.3d at 682-83.

      The district court construed Elmore’s allegations as akin to a claim for false

arrest because he complained of an arrest without probable cause and identified his

claim as one for “illegal arrest.” 7 Although two warrants issued, the amended

complaint alleges that only one arrest occurred (“The arrest of Plaintiff was

without probable cause or arguable probable cause and in violation of the Fourth

and Fourteenth Amendment prohibition against unreasonable search and seizure.”

(emphasis added)).      Therefore, to the extent that Elmore challenged only the

constitutionality of his arrest, the district court would not have erred in concluding

that Elmore’s arrest was constitutionally valid because it was supported by

probable cause. See Devenpeck, 543 U.S. at 153-55, 125 S. Ct. at 593-94; Lee, 284

F.3d at 1195-96; see also Marx, 905 F.2d at 1505-06; Holmes, 511 F.3d at 682

(“An arrested individual is no more seized when he is arrested on three grounds

rather than one[.]”).

      On appeal, Elmore contends that his case is controlled by this Court’s

decision in Uboh, which concerned a claim for malicious prosecution.              And

Elmore may be correct that he could have maintained a § 1983 malicious-

prosecution claim based on the lack of probable cause to arrest for cruelty to

      7
       At no point in the district-court proceedings did Elmore suggest that his Fourth
Amendment claim should have been construed as one for malicious prosecution.
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children in the third degree. See Holmes, 511 F. 3d at 682-83; Johnson, 477 F.3d

at 83.     Accordingly, the district court arguably may have erred in failing to

consider the substance of Elmore’s claim as one alleging malicious prosecution.

But see Calero-Colon, 68 F.3d at 3 (“Even though malicious prosecution and false

arrest may seem distinct enough in abstract definition, however, in a wrongful

arrest case—particularly an arrest conducted pursuant to a warrant based on false

allegations—the lines between the two may become blurred.”).

         Nonetheless, even assuming—as Elmore contends—that this Court’s

decision in Uboh controls this case, the amended complaint fails to allege facts

necessary to state a § 1983 claim for malicious prosecution. As the Court in Uboh

explained, “[I]n order to state a cause of action for malicious prosecution, a

plaintiff must allege and prove that the criminal proceeding that gives rise to the

action has terminated in favor of the accused.” Uboh, 141 F.3d at 1004; see also

Heck v. Humphrey, 512 U.S. 477, 484, 114 S. Ct. 2364, 2371 (1994) (“One

element that must be alleged and proved in a malicious prosecution action is

termination of the prior criminal proceeding in favor of the accused.”).

         Here, Elmore did not allege in his amended complaint any facts establishing

the common-law element of “favorable termination,” such as the charges being

dropped or dismissed. Indeed, the amended complaint contains no allegations

regarding a prosecution following his arrest pursuant to an invalid warrant. Cf.


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Whiting, 85 F.3d at 583-84 (“Whiting, however is not claiming just that he was

seized unlawfully or that a warrant was issued without probable cause: he says he

was “maliciously prosecuted” in violation of his Fourth Amendment rights.”).

Even if Elmore had been unconstitutionally seized pursuant to an invalid warrant,

Elmore did not allege a necessary element of a common-law malicious prosecution

claim. 8 See Grider, 618 F.3d at 1256. Therefore, the amended complaint fails to

state a § 1983 claim of malicious prosecution. Consequently, the district court did

not err in dismissing Elmore’s § 1983 claim against Sauce, whether it is construed

as a false-arrest claim or a malicious-prosecution claim, under Rule 12(b)(6).

                                                 V.

       Finally, Elmore argues that Holland, the principal of the school, is liable

under § 1983 for ordering Elmore’s allegedly unconstitutional arrest.

       Supervisors cannot be held liable under § 1983 on the basis of vicarious

liability or respondeat superior.             Keating, 598 F.3d at 762.              Nonetheless,

“supervisors are liable under § 1983 either when the supervisor personally

participates in the alleged constitutional violation or when there is a causal

       8
           As part of his statement of facts in his initial brief, Elmore asserts that “[t]he charges
were dismissed.” However, this allegation did not appear in the amended complaint and Elmore
did not move for leave to amend in the district court to allege that fact. Cf. Wagner v. Daewoo
Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc) (“A district court is not
required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is
represented by counsel, never filed a motion to amend nor requested leave to amend before the
district court.”). Further, although Elmore’s failure to allege favorable termination was raised by
the Appellees in their response brief, Elmore did not then address the issue in his reply brief.
Thus, in the absence of any guidance from Elmore, we affirm the dismissal of the claim.
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connection between actions of the supervising official and the alleged

constitutional violation.” Id. (internal quotation marks omitted). The requisite

causal connection can be established by facts supporting an inference that the

supervisor directed his subordinates to act unlawfully or failed to stop his

subordinates when the supervisor knew they would act unlawfully. Id.

      Here, we know from the amended complaint that Holland was the principal

of the school in which Elmore worked, that Sauce was a police officer for the

District, and that Holland “directed Defendant Sauce to take out a warrant against

Plaintiff.” To the extent that Elmore argues that he was liable as a supervisor for

ordering Elmore’s arrest, Elmore has not alleged facts sufficient to support an

inference that Holland was, in fact, Sauce’s supervisor or that he had any authority

over her. See Brown v. City of Huntsville, Ala., 608 F.3d 724, 737 (11th Cir. 2010)

(affirming the grant of qualified immunity where the plaintiff failed to show that

the defendants participated in the plaintiff’s arrest or were supervisors of the

officer who arrested her). Holland also was not personally involved in Elmore’s

arrest. See id. Nor do the allegations show that, even if Holland was Sauce’s

supervisor, Holland directed Sauce to act unlawfully or knew that she would act

unlawfully by, for example, omitting material information from the warrant

affidavit. See Keating, 598 F.3d at 762.




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                                       VI.

      In short, we affirm the district court’s dismissal of Elmore’s amended civil

rights complaint. We conclude that Sauce is entitled to qualified immunity from

Elmore’s § 1983 claim based on a violation of the Fourth Amendment. We further

determine that Elmore failed to state a claim of supervisor or personal liability

against Holland for the alleged Fourth Amendment violation.

      AFFIRMED.




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