[DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________            FILED
                                                   U.S. COURT OF APPEALS
                                No. 10-14132         ELEVENTH CIRCUIT
                                                         JUNE 2, 2011
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                           CLERK

                   D.C. Docket No. 6:10-cv-00260-ACC-GJK

LARRY CRAFT, individually and
for and on behalf of minor son, ZC,
APRIL CRAFT, individually and
for and on behalf of minor son, ZC,

                                                       Plaintiffs-Appellants,

                                      versus

HEATHER OLSZEWSKI,
DANIEL GENOVESE,
CITY OF ORANGE CITY FLORIDA,
PERSIO GENAO,
BEN F. JOHNSON, Sheriff of Volusia County, Florida, et al.,

                                                       Defendants-Appellees.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________
                                (June 2, 2011)

Before TJOFLAT, CARNES and COX, Circuit Judges.
PER CURIAM:

      The Plaintiffs Larry Craft and April Craft, individually and on behalf of their

minor son, ZC, filed this civil action against several individuals and Volusia County,

Florida, asserting various 42 U.S.C. § 1983 claims and one state law claim in a four

count complaint. The counts at issue on appeal are as follows: Count One of the

Second Amended Complaint (the complaint at issue) asserts a § 1983 claim against

Persio Genao, a Deputy Sheriff with the Volusia County Sheriff’s office; Count Two

asserts at § 1983 claim against Daniel Genovese, Genao’s supervisor in the Sheriff’s

office; Count Three asserts a Florida law assault claim against Genao; and Count

Four asserts a § 1983 claim against Ben F. Johnson, the Sheriff of Volusia County,

and the County.

      All Defendants filed Fed. R. Civ. P. 12(b)(6) motions to dismiss, all of which

asserted failure to state a claim. And, the motions filed by the individual Defendants

also asserted qualified immunity. The district court granted these 12(b)(6) motions

and dismissed the action as to all the Defendants with prejudice except for the Count

Three Florida law assault claim against Genao, which the court remanded to state

court based upon dismissal of all the federal claims. The Plaintiffs appeal.

      The Plaintiffs present the following issues on this appeal. They contend that

the court erred: (1) in dismissing the § 1983 claims in Count One against Genao, and

                                          2
then remanding the Florida law claim to state court based upon dismissal of the

federal claims; (2) in dismissing Count Two against Deputy Genovese; and (3) in

dismissing Count Four against Sheriff Johnson and Volusia County. We find the

contentions number (2) and (3) meritless; they merit no further discussion. We now

consider the Plaintiffs’ first contention: that the court erred in dismissing Count One

against Genao.

       We take the facts, as we must, from the relevant allegations of the Second

Amended Complaint. We accept all well-pleaded facts as true and draw all inferences

in favor of the Plaintiffs. Williams v. Ala. State Univ., 

, 1182 (11th Cir.

1997). The relevant allegations are the first fifty-one numbered paragraphs plus the

allegations in Count One.

       The parties agree that we review de novo the grant of a motion to dismiss.

Count One asserts § 1983 claims against Deputy Sheriff Genao for wrongful arrest

and the use of excessive force in making the arrest, both in violation of the Fourth

Amendment. Genao’s motion to dismiss is based only on allegations of the Second

Amended Complaint and an exhibit attached to the Second Amended Complaint.1




       1
         The exhibit is a “Mutual Aid Agreement” entered into by law enforcement agencies in the
area, by the terms of which voluntary cooperation and assistance is made available across
jurisdictional lines.

                                               3
      The Plaintiffs contend that the Second Amended Complaint shows that Deputy

Genao, when arresting ZC, had no knowledge or information that ZC had committed

any crime, and that the arrest was therefore unlawful. And, the Plaintiffs contend, the

use of a dog to restrain ZC was unreasonable and excessive. Defendant Genao’s

response to the Plaintiffs’ contentions is: (1) the district court correctly found that

Deputy Genao was acting within his discretionary authority and had at least arguable

probable cause to arrest ZC; and (2) as to the excessive force claim, that Deputy

Genao did not violate the clearly established rights of ZC and thus was entitled to

qualified immunity.

      The district court’s analysis, in its own words, “begins and ends with the

second prong of the qualified immunity analysis–whether the unconstitutionality of

Genao’s actions was clearly established at the time of the incident.” (R.3-59 at 9.)

The court held that it was not.

      The district court’s analysis found that “. . . it is clear from the allegations in

the Second Amended Complaint that Genao was performing his discretionary

functions as a deputy sheriff. Accordingly, Plaintiffs bear the burden of establishing

that qualified immunity is not appropriate.” (Id.)

      The district court assumed that ZC was arrested for burglary based upon

allegations in the Second Amended Complaint. The court assumed application of the

                                           4
“fellow officer” rule, which allows an officer to rely upon the probable cause

determination of another officer. The problem is that no allegations of the Second

Amended Complaint support application of the “fellow officer” rule. “Where there

is at least minimal communication between different officers, the collective

knowledge of the officers determines probable cause.” United States v. Allison, 

, 1350 (11th Cir. 1992) (citing United States v. Astling, 

,

1460 (11th Cir. 1984). The allegations of the Second Amended Complaint do not

show that the collective knowledge of all officers involved demonstrate that there was

even arguable probable cause to believe that ZC had committed burglary.2

       The district court also found that, even if there was not arguable probable cause

to arrest ZC for burglary, there was probable cause to arrest him for “loitering and/or



       2
         For example, Plaintiffs allege that the radio call reporting that a burglary had occurred was
made by an officer who thought that throwing chairs into a pool was a burglary, but who had not
seen ZC or his host in the pool area and had no personal knowledge of whether ZC had thrown any
pool furniture. (R.2-46, Second Amended Complaint at ¶¶ 32, 38.) Plaintiffs also allege that the off-
duty police officer on-scene who had called the police has “never stated that he could specifically
identify ZC as a person whom he personally saw commit any crime.” (Id. at ¶ 32.) “Probable cause
to arrest exists where ‘the facts and circumstances within the collective knowledge of the law
enforcement officials, of which they had reasonably trustworthy information, are sufficient to cause
a person of reasonable caution to believe that an offense has been or is being committed.’” Wilson
v. Attaway, 

, 1235 (11th Cir. 1985) (quoting United States v. Pantoja-Soto, 

, 1523 (11th Cir.1984)). And, under our binding precedent, “if the directing officer does not
have probable cause, the government may not bootstrap probable cause from the innocent act of a
police officer following an erroneous direction.” United States v. Ashley, 

, 983 (5th Cir.
1978) (citation omitted) (interpreting Whiteley v. Warden, 

, 

(1971)).
Therefore, under the facts presented in the Second Amended Complaint, Defendant Genao cannot
claim immunity based solely on the radio call.

                                                  5
prowling in violation of Fla. Stat. § 856.021.” (R.3-59 at 12.) Here again we

conclude that the allegations of the Second Amended Complaint do not support the

finding.

       Having concluded that the record does not support the court’s finding that there

was “arguable probable cause” for ZC’s arrest, it follows that any use of force was

excessive in violation of the Fourth Amendment. Thornton v. City of Macon, 

, 1400 (11th Cir. 1998).

       We therefore reverse the dismissal of Count One. Since the remand of the state

law claim in Count Three was based upon the dismissal of the federal claim in Count

One, we vacate the remand of Count Three.

       We AFFIRM except for the dismissal of Count One and the remand of Count

Three. We REVERSE the dismissal of Count One and VACATE the remand of

Count Three.3

       AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART.




       3
       Qualified immunity does not drop out of the case. Defendant Genao may assert it by motion
for summary judgment and/or at trial.

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