Filed: Oct. 16, 2013
Latest Update: Mar. 28, 2017
Summary: Case: 12-15768 Date Filed: 10/16/2013 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-15768 Non-Argument Calendar _ D.C. Docket No. 8:11-cv-02101-VMC-TGW MARK BRIVIK, Plaintiff - Appellant, versus CLAUDIA LAW, Officer, JOHN MURRAY, STEVE MURRAY, JOSEPH RUSSO, RICHARD ZIMMERMAN, RONALD CARR, ANDRE PANET-RAYMOND, ABRAHAM SMAJOVITS, Defendants - Appellees. _ Appeal from the United States District Court for the Middle District of Florida _ (Octo
Summary: Case: 12-15768 Date Filed: 10/16/2013 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-15768 Non-Argument Calendar _ D.C. Docket No. 8:11-cv-02101-VMC-TGW MARK BRIVIK, Plaintiff - Appellant, versus CLAUDIA LAW, Officer, JOHN MURRAY, STEVE MURRAY, JOSEPH RUSSO, RICHARD ZIMMERMAN, RONALD CARR, ANDRE PANET-RAYMOND, ABRAHAM SMAJOVITS, Defendants - Appellees. _ Appeal from the United States District Court for the Middle District of Florida _ (Octob..
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Case: 12-15768 Date Filed: 10/16/2013 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15768
Non-Argument Calendar
________________________
D.C. Docket No. 8:11-cv-02101-VMC-TGW
MARK BRIVIK,
Plaintiff - Appellant,
versus
CLAUDIA LAW,
Officer,
JOHN MURRAY,
STEVE MURRAY,
JOSEPH RUSSO,
RICHARD ZIMMERMAN,
RONALD CARR,
ANDRE PANET-RAYMOND,
ABRAHAM SMAJOVITS,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 16, 2013)
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Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Mark Brivik appeals the district court’s order granting Officer Claudia
Law’s motion to dismiss for failure to state a claim, as well as the court’s order
dismissing Brivik’s claims against Steve Murray, Richard Zimmerman, and Ronald
Carr (collectively, the co-investors). 1 After careful review, we affirm. 2
I. BACKGROUND
Brivik and his co-investors bought real estate to develop. According to
Brivik, the co-investors wanted to back out of the deal because of the economic
downturn, so they concocted false accusations against Brivik, namely that he had
misrepresented the existence of an option to purchase a parcel of property adjacent
to the development when he really only possessed a right of first refusal. The co-
investors met with Officer Claudia Law of the Florida Department of Law
Enforcement, who he alleged performed a reckless investigation based on the false
information the co-investors provided. This investigation led to Brivik’s arrest on
felony charges. He spent 24 days in jail. The charges were later dismissed when
the State Attorney’s Office declined to prosecute.
Brivik filed suit under 42 U.S.C. § 1983 against Officer Law and the co-
investors, alleging they violated his Fourth Amendment rights by falsely arresting
1
The other defendants listed in the caption are not a part of this appeal.
2
Brivik’s attorney’s motion to withdraw as counsel is GRANTED.
2
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and maliciously prosecuting him. He also alleged state-law claims of false arrest
and malicious prosecution. Officer Law moved to dismiss the claims against her
based on qualified and state-law immunity, and the district court granted the
motion. Brivik then moved for leave to amend his complaint against Officer Law,
but the district court denied the motion, concluding that amendment would be
futile.
Brivik subsequently filed an amended complaint naming only the co-
investors, which the district court dismissed for failure to state a claim, reasoning
that the co-investors were not state actors and therefore could not be liable under
§ 1983. The district court then declined to exercise supplemental jurisdiction over
Brivik’s state-law claims.
This is Brivik’s appeal. We first consider the dismissal of the claims against
Officer Law and then analyze the dismissal of the claims against the co-investors.
II. CLAIMS AGAINST OFFICER LAW
A. QUALIFIED AND STATE-LAW IMMUNITY
Brivik first contends that the district court improperly dismissed his claims
against Officer Law. He asserts that Officer Law was not entitled to qualified
immunity because she lacked arguable probable cause to justify Brivik’s arrest.
“We review a district court’s grant of a motion to dismiss based on qualified
immunity de novo and accept well-pleaded allegations as true, construing facts in
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the light most favorable to the plaintiff[].” 3 Collier v. Dickinson, 477 F.3d 1306,
1308 (11th Cir. 2007). We may also consider documents attached to the motion to
dismiss that are “(1) central to the plaintiff’s claim and (2) undisputed.” Day v.
Taylor,
400 F.3d 1272, 1276 (11th Cir. 2005). To be immune from § 1983 false-
arrest and malicious-prosecution claims, an officer need only demonstrate that she
acted with arguable probable cause. Montoute v. Carr,
114 F.3d 181, 184 (11th
Cir. 1997). “Arguable probable cause exists where reasonable officers in the same
circumstances and possessing the same knowledge as the Defendants could have
believed that probable cause existed to arrest [the] Plaintiff.” Brown v. City of
Huntsville, Ala.,
608 F.3d 724, 734 (11th Cir. 2010) (internal quotation marks
omitted).
Upon reviewing the complaint and Officer Law’s arrest affidavit attached to
her motion to dismiss, we hold that the district court properly granted Officer
Law’s motion to dismiss. Brivik alleged Officer Law performed a reckless
investigation that ultimately led to his wrongful arrest and incarceration. But this
conclusory allegation is insufficient to demonstrate that Officer Law lacked
arguable probable cause, particularly in light of Officer Law’s affidavit in support
of Brivik’s arrest warrant, which she attached to her motion to dismiss. See
3
Steve Murray’s motion to strike the portions of Brivik’s brief that cite to evidence not
considered below is DENIED. But because the district court disposed of all of Brivik’s claims at
the motion to dismiss stage, we consider only the pleadings and Officer Law’s arrest affidavit,
which is both central to Brivik’s claims and referenced in his complaint. See Starship Enters. of
Atlanta, Inc. v. Coweta Cnty., Ga., 708 F.3d 1243, 1252 n.13 (11th Cir. 2013).
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.”); see also Griffin Indus., Inc. v. Irvin,
496 F.3d 1189, 1206 (11th Cir.
2007) (“[W]hen the exhibits [attached to a pleading] contradict the general and
conclusory allegations of the pleading, the exhibits govern.”). Although the Fourth
Amendment “prohibits a police officer from knowingly making false statements in
an arrest affidavit about the probable cause for an arrest,” Holmes v. Kucynda,
321
F.3d 1069, 1084 (11th Cir. 2003) (internal quotation marks omitted), Brivik
pleaded no facts indicating that Officer Law knew statements in the affidavit she
filed to procure Brivik’s arrest were false. Indeed, the affidavit reveals that Officer
Law conducted an independent investigation and based her decision to pursue
Brivik’s arrest on sworn statements from the co-investors indicating that Brivik
falsely represented he had an option to purchase a piece of property they deemed
critical to the investment’s success. She also consulted with an attorney familiar
with securities law who indicated that, in his opinion, the investment Brivik
offered the co-investors qualified as a security under Florida law that was required
to be registered. And Officer Law’s investigation revealed Brivik had not
registered it. From this evidence, a reasonable officer could have concluded that
Brivik violated Fla. Stat. § 517.07(1), which makes it unlawful “for any person to
sell or offer to sell a security . . . unless the security is exempt . . . or is registered.”
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Hence, Officer Law had arguable probable cause to arrest Brivik, and the district
court properly granted her motion to dismiss the § 1983 claims on qualified
immunity grounds. See Montoute, 114 F.3d at 184.
Brivik further argues that the district court improperly concluded that
Officer Law was immune under Florida law. But in Florida, police officers are
immune from suit unless they “acted in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights, safety, or
property.” Fla. Stat. § 768.28(9)(a). Brivik’s allegation that Officer Law acted
maliciously and in bad faith is conclusory and therefore insufficient to survive a
motion to dismiss. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.”).
B. MOTION FOR LEAVE TO AMEND THE COMPLAINT
Brivik also contends that the district court improperly denied his motion for
leave to amend his allegations against Officer Law. Generally, we review de novo
the district court’s denial of a motion to amend as futile. Hollywood Mobile
Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1264 (11th Cir. 2011). We
do not have occasion to consider whether Brivik’s amendment would be futile,
however, because he did not move for leave to amend until after the district court
granted Officer Law’s motion to dismiss and after the deadline to do so in the
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district court’s scheduling order. And he has not argued, either in this court or
before the district court, that he had good cause for his failure to move for leave to
amend earlier. See S. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241
(11th Cir. 2009) (“A plaintiff seeking leave to amend [his] complaint after the
deadline designated in a scheduling order must demonstrate ‘good cause’ under
Fed. R. Civ. P. 16(b).”). That is especially problematic because he was on notice
of the deficiencies in his complaint before the deadline expired as a result of
Officer Law’s motion to dismiss. Crucially, Brivik offers no explanation as to why
the newly-pleaded facts were unavailable to him prior to the scheduling-order
deadline. See Sosa v. Airprint Sys., Inc.,
133 F.3d 1417, 1418 (11th Cir. 1998)
(noting that the “good cause standard precludes modification unless the schedule
cannot be met despite the diligence of the party seeking the extension” (internal
quotation marks omitted)). The district court therefore properly denied Brivik’s
motion for leave to amend.
III. CLAIMS AGAINST THE CO-INVESTORS
Brivik next contends that the district court erred in dismissing his § 1983
claims against the co-investors. Brivik’s amended complaint against the co-
investors alleged that they “engaged in joint action” and “in a reckless campaign”
to arrest and prosecute Brivik. Brivik also alleged, in the alternative, that the co-
investors and Law conspired, acted in concert, or reached an understanding to
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generate false accusations against Brivik. The district court dismissed the
complaint against the co-investors, concluding that Brivik failed to state a claim
upon which relief may be granted because he did not plead facts sufficient to show
that the co-investors were state actors. We review this conclusion de novo.
Thompson v. RelationServe Media, Inc., 610 F.3d 628, 633 (11th Cir. 2010).
“To obtain relief under § 1983, [the plaintiff] must show that he was
deprived of a federal right by a person acting under color of state law.” Patrick v.
Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). Private parties are only
rarely deemed to be state actors under § 1983, and we will find that a private party
is a state actor only if one of three conditions is met:
(1) the State has coerced or at least significantly encouraged the
action alleged to violate the Constitution . . . ; (2) the private
parties performed a public function that was traditionally the
exclusive prerogative of the State . . . ; or (3) the State had so
far insinuated itself into a position of interdependence with the
private parties that it was a joint participant in the
enterprise . . . .
Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001)
(alterations and internal quotation marks omitted). Brivik concedes that only the
third circumstance might be implicated in this case. To establish that a private
party is a state actor in this scenario, “the governmental body and private party
must be intertwined in a symbiotic relationship [that] involve[s] the specific
conduct of which the plaintiff complains.” Focus on the Family v. Pinellas
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Suncoast Transit Auth., 344 F.3d 1263, 1278 (11th Cir. 2003) (internal quotation
marks omitted).
On appeal, Brivik contends that he sufficiently pleaded joint action. But he
points to nothing in his complaint to indicate that the co-investors and Officer Law
acted together to falsify facts leading to Brivik’s arrest. Rather, he argues only that
the co-investors “knowingly and deliberately falsified information during their
meetings with Claudia Law.” This is insufficient to show that the co-investors
were state actors under § 1983. See id.; see also Nat’l Broad. Co., Inc. v.
Commc’ns Workers of Am., 860 F.2d 1022, 1025 n.4 (11th Cir. 1988) (“[P]rivate
conduct is fairly attributable [to the State] only when the state has had some
affirmative role . . . in the particular conduct underlying a claimant’s civil rights
grievance.” (emphasis added) (internal quotation marks omitted)). Hence, the
district court properly dismissed Brivik’s claims against the co-investors.4
IV. CONCLUSION
For the above reasons, we find no error in the district court’s dismissal of
Brivik’s claims against both Officer Law and the co-investors. The judgment of
the district court is
4
Brivik does not argue that, if the district court properly dismissed his § 1983 claims, it abused
its discretion by declining to exercise supplemental jurisdiction over his state-law claims. He has
therefore abandoned this argument. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1330 (11th Cir. 2004) (“[A] legal claim or argument that has not been briefed before the court is
deemed abandoned and its merits will not be addressed.”); see also 28 U.S.C. § 1367(c)(3)
(providing that a district court may decline to exercise supplemental jurisdiction over state-law
claims where it has “dismissed all claims over which it has original jurisdiction”).
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AFFIRMED.
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