Case: 14-11341    Date Filed: 08/29/2014   Page: 1 of 3


                                                          [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         _________________________

                                 No. 14-11341
                             Non-Argument Calendar
                          _________________________

                      D.C. Docket No. 1:12-cv-00872-WBH

KENNETH DAVID BUTLER,

                                                               Plaintiff-Appellant,

                                      versus

DAVID SCHIRALLI, et al.,

                                                            Defendants-Appellees.

                          ________________________

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

                                (August 29, 2014)

Before TJOFLAT, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Plaintiff appeals the District Court’s March 5, 2013, order, Doc. 154,

granting defendants’ summary judgment on his claims for damages under 42

U.S.C. § 1983 for defendants’ alleged infringement of his rights under the Fourth
                 Case: 14-11341       Date Filed: 08/29/2014        Page: 2 of 3


and Fourteenth Amendments to the U.S. Constitution. 1 His claims arose out of an

undercover sting operation the Gwinnett County Police Department (GCPD)

conducted at a Kmart store after receiving reports of illicit sexual activity

occurring in the store’s men’s bathroom. Doc. 154, at 1–2. After investigator

Doherty

       saw what he thought was masturbation . . . other police officers
       entered the bathroom and took Plaintiff to Kmart’s loss control office
       and interviewed him. The police gave Plaintiff a misdemeanor
       citation for loitering for sexual purposes and Plaintiff left the Kmart.
       The charges against Plaintiff were later changed to public
       indecency. . . . After [Plaintiff] was cited by police, the
       GCPD . . . . issued a press release on behalf of the
       department . . . [stating] that [Plaintiff] had been arrested and
       charged with loitering for the purpose of engaging in solicitation of
       sex acts in a public place and that Plaintiff had admitted that he
       was in the Kmart men’s room for that purpose.

In granting summary judgment on Plaintiff’s § 1983 claims, the court

assumed that Plaintiff’s detention was sufficient to support a § 1983 claim for false

arrest and held that inspector Doherty was entitled to qualified immunity—because

he had arguable probable cause to believe that Plaintiff was engaging in the illicit

activity with which he was charged. 

The court therefore dismissed

Plaintiff’s Fourth Amendment claims against Doherty and the other defendants.




       1
         Plaintiff also appeals the District Court’s dismissal without prejudice of his state law
claims brought under the court’s supplemental jurisdiction. See 28 U.S. § 1367(c)(3). In
affirming the court’s judgment on Plaintiff’s federal constitutional claims, we affirm its dismissal
without prejudice of his state law claims.
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It also found no merit in the officers’ failure to inform him of his Miranda rights

because the officers never took Plaintiff into custody. 

      Plaintiff challenges the court’s summary judgment on a variety of grounds.

We find that none has merit. Nor does his argument that the court should have

sanctioned defendants for spoliation—specifically, that

      Kmart deleted the videos from security cameras on the day
      that he was cited for loitering, the GCPD failed to secure copies
      of the videos, and the GCPD failed to collect evidence from the
      men’s room, such as a piece of tissue paper that . . . Doherty
      had seen on the floor and thought was a signal for solicitation as
      well as taking photographs of the graffiti on the men's room walls.

      AFFIRMED.




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