CARNES, Circuit Judge:
In one of his ballads, Jim Croce warned that there are four things that you just don't do: "You don't tug on Superman's
It all started with a phone call.
The record does not tell us how the timing worked out as unfortunately as it did. It may be that the two young people simply lost track of time, which would be understandable given the circumstances. Or it may be that Uzuri's mother, Dorethea Collier, left work early that day. However it happened, Collier came close to catching the couple coupling. So close that when they heard her, Butler had only enough time to dash into the bedroom closet wearing nothing but a look of surprise.
Collier was a corrections officer at the Eagle Academy, which is a "boot-camp facility for minors" run by the Palm Beach County Sheriff's Office. She was wearing her uniform and gun belt with pistol and "[u]pon entering the room, she began demanding that Uzuri explain why she was undressed and what she was doing." While talking with her daughter, Collier took off her utility belt and threw it on the bed. Sometime thereafter — the implication is sooner rather than later — Collier discovered Butler stark naked in her daughter's closet. She yelled at him and punched him one time. Then Collier picked up her utility belt, put it back on, and drew her gun. She told Butler that if he moved or did not follow her commands, she would shoot him.
Butler tried to explain that Uzuri had invited him to the house, but Collier insisted that he must have broken in. She had the still-naked Butler turn around, she handcuffed him, and she made him get down on his knees. After staying there "for a prolonged period," Butler pleaded with Collier that he could not maintain that position any longer. Collier responded by telling him to bend over or she would shoot him. She "made numerous threats against Butler, [telling him] that she would `kill him' if he did not obey her commands."
While still holding Butler at gunpoint, Collier called her husband and told him to come home immediately. After that, she called a supervisor at Eagle Academy and asked what charges she could bring against Butler for entering the house and
Collier continued to hold Butler at gunpoint, threatening to kill him if he did not follow orders. After Collier's husband "inquired further" about the naked man's identity and determined who he was, Butler was allowed to get dressed and leave, although Collier kept the gun pointed at him while he was dressing. One can assume that it did not take Butler long to get dressed and get out, but before he had time to leave Collier "warned him about the consequences of filing charges or even `thinking about' reporting the incident." She told Butler that if he reported what had happened, she "would submit a report to discredit him and would engage in some `creative writing' if necessary to justify the filing of charges against him for trespassing on the property." Despite those threats, Butler eventually reported the incident to law enforcement. There is no allegation that Collier responded by submitting a report of her own or by filing trespassing charges against Butler.
Butler filed a lawsuit in Florida state court against Collier, individually and in her official capacity as a corrections officer with the Palm Beach County Sheriff's Office, and against Ric Bradshaw, the Sheriff of Palm Beach County, Florida, in his official capacity only. Butler's complaint claimed that Collier had violated 42 U.S.C. § 1983 by using "plainly excessive and disproportionate force on Butler to effect an unlawful and unreasonable search and seizure" (Count II). His complaint also included a state law claim of "battery/excessive force" against Collier in her official capacity (Count III), and state law claims against her both individually and in her official capacity for false imprisonment (Counts IV & V) and for intentional and negligent infliction of emotional distress (Counts VI-IX). The claim against Sheriff Bradshaw was a derivative one, asserting that he had as a matter of policy, practice, and custom inadequately trained, disciplined, and supervised deputies and others under his supervision, including Collier, resulting in violations of § 1983 (Count I).
Collier and Bradshaw removed the case to federal district court, see 28 U.S.C. § 1441(a), based on federal question jurisdiction, see id. § 1331, which was premised on the § 1983 claims. The defendants each filed a motion to dismiss the complaint. In a written response to the motions to dismiss his § 1983 claims, Butler contended that Collier had acted under color of law by, among other things, attempting to charge him with a crime, asserting that: "[s]he contacted officials at the Eagle Academy ... about what charges she could bring against plaintiff. She even sought to charge Plaintiff with trespassing but was overridden by her supervisor."
The district court concluded that the allegations in the amended complaint showed no more than Collier acting as a private individual because nothing she allegedly did to Butler relied on or invoked her authority as a law enforcement officer. For that reason, the court once again dismissed Butler's § 1983 claims under Rule 12(b)(6). Because Butler had been unable to state a federal claim despite being given an opportunity to amend the complaint, the court concluded that any further attempts to amend would be futile and made the dismissal with prejudice. The court declined to exercise supplemental jurisdiction over Butler's state law claims, remanding them to state court.
"We review de novo the district court's grant of a motion to dismiss under 12(b)(6) for failure to state a claim, accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff." Ironworkers Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th Cir.2011) (quotation marks omitted). The plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (citations omitted). To survive a motion to dismiss, the plaintiff must plead "a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. at 1974.
Section 1983 does not federalize all torts or other deprivations of rights committed by a person who is a law enforcement officer or other government agent. Instead, the statute covers only those deprivations committed "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia." 42 U.S.C. § 1983. That requirement is more concisely referred to as the "acting under color of state law" element. Almand v. DeKalb Cnty., Ga., 103 F.3d 1510, 1513 (11th Cir.1997) (holding that to establish a § 1983 claim, a plaintiff must show that he "was deprived of a federal right by a person acting under color of state law"). A defendant acts under color of state law when she deprives the plaintiff of a right through the exercise of authority that she has by virtue of her government office or position.
Our decision in Almand (which is controlling authority) and the Fifth Circuit's decision in United States v. Tarpley, 945 F.2d 806 (5th Cir.1991) (which is persuasive authority), illustrate the line that is drawn in § 1983 cases of this type. In the Almand case, we considered the conduct of a police officer who forced his way into a woman's apartment and raped her. 103 F.3d at 1511-12. The woman had originally let the officer in "because of his status as a police officer" and his proffer of information about those responsible for the rape of the woman's daughter about a month earlier. Id. at 1514-15. Afterwards, when he propositioned her, the woman told the officer to leave and after he did she closed the door. Id. at 1515. Immediately thereafter, the officer "forced open the closed door with such shock that wood broke off the door. Having pushed open the door, [he] reentered [her] apartment, physically struggled with her, and forcibly raped her." Id. at 1512.
We concluded in Almand that the officer's conduct in breaking in and raping the woman was a private act, not accomplished because of power he possessed under state law, and in that respect "he was no different from any other ruffian." Id. at 1515. We explained that "any thug or burglar could have committed the same violent acts." Id. For those reasons, we decided that the officer's "conduct (if he did the things alleged) was the act of a private citizen and did not violate the Constitution," and we concluded that the district court should have granted summary judgment in his favor on the § 1983 claim. Id.
The Tarpley case was different. William Tarpley, a deputy sheriff, devised a plan to assault Kerry Vestal, a man who had engaged in an extramarital affair with Tarpley's wife. Tarpley, 945 F.2d at 807. With the help of his faithless wife, Tarpley planned to lure Vestal to his house for the assault. See id. at 807-08. While at the sheriff's station, Tarpley and a fellow deputy, Michael Pena, made "sap gloves," which have "rubber hosing filled with metal or lead shot attached to the fingers." Id. at 808. Tarpley planned to use those weapons to attack Vestal. See id.
When the unsuspecting Vestal arrived at Tarpley's house, the wife pulled him inside where Tarpley tackled him and repeatedly hit him in the head. Id. Tarpley then put his service pistol in Vestal's mouth, and told him that "he was a sergeant on the police department, that he would and should kill Vestal, and that he could get away with it because he was a cop." Id. Tarpley said, "`I'll kill you. I'm a cop. I can.'" Id. The Tarpleys then summoned Deputy Pena to the house, and Tarpley told Vestal that Pena was "a fellow sergeant from the police department." Id. Deputy Pena confirmed to Vestal that Tarpley had shot people in the past. Id. After the two deputies finally let Vestal go, they followed him in Pena's squad car and radioed another officer to do the same. Id. Both squad cars followed Vestal to the edge of town. Id.
Tarpley contended that "he was acting as a jealous husband, not as a police officer." Id. at 809. The Fifth Circuit rejected that contention, holding that there was sufficient evidence for a jury to find that Tarpley acted under color of law.
Id.
Butler relies on the Tarpley decision as persuasive authority, but the present case is closer to our binding precedent in Almand than it is to Tarpley. As in Almand, Collier's conduct, or misconduct, was not accomplished because of her status as a corrections officer. Just as "any thug or burglar could have committed the same violent acts" as the officer in Almand, 103 F.3d at 1515, any irate mother with an anger management problem could have done what Collier did.
This case actually presents a weaker basis for a finding of action under color of state law than the Almand case did. Unlike the defendant in that case, Collier did not use her law enforcement position to strike up a relationship with the victim or to initially gain access to the house where the assault took place. It was Collier's house, and she walked in just like any private individual returning home from work. Collier's discovery of a naked man in her daughter's closet was not the result of an official search by a law enforcement officer. When Collier punched Butler, she was acting as an enraged parent; she was not purporting to exercise her official authority to subdue a criminal for purposes of an arrest. When she handcuffed and detained Butler, Collier did not purport to be exercising her authority to arrest a criminal. When she called her husband, she was acting as a wife and parent, not as an officer. And when Collier called her place of work, a boot camp facility for minors, for advice about whether Butler could be charged with a crime, she did no more than an ordinary citizen could do by simply requesting information from law enforcement authorities about whether Butler's conduct was criminal.
Although Collier did use the pistol that she wore as an officer, any adult without a felony record can lawfully possess a firearm (and tens of millions do). A law enforcement officer who gets into an after-hours dispute with her domestic partner that tragically escalates into a shooting does not act under color of law merely because the weapon used is the firearm the officer carries on duty. As for the handcuffs, the law does not restrict possession of them to law enforcement officers. In any event, there is no reason to believe
In the Tarpley case, by contrast, the defendant deputy used his position and authority to assault and intimidate the victim. He planned the assault with another deputy while at the sheriff's office. Tarpley, 945 F.2d at 808. He enlisted that other deputy's help in carrying out the assault, and he used law enforcement vehicles to accomplish his goals. Id. During the assault he repeatedly reminded the victim that he was a law enforcement officer and even told the man that because he was an officer he could get away with shooting and killing him. Id. ("He repeated `I'll kill you. I'm a cop. I can.'"). Collier, unlike Tarpley, did not use her position and authority to plan the detention and assault of the victim; she did not enlist the aid of another officer in her misconduct; she did not repeatedly remind the victim that she was a law enforcement officer; she did not boast to him that as an officer she could get away with killing him. The only other person whose help Collier sought as the events unfolded was her husband, and there is no allegation that he was a law enforcement officer. When Butler left, Collier did not follow him in a law enforcement vehicle — there is no allegation that she even had one — or radio another officer to follow Butler in that other officer's official vehicle.
The allegations are that Collier warned Butler that if he reported what had happened she would, in effect, lie about it in a report of her own or file charges against Butler for trespassing on her property. But any private citizen can submit a report to law enforcement and seek criminal charges against another person. Cf. Fla. Stat. § 817.49 (providing that it is a misdemeanor to convey "to any law enforcement officer false information or reports concerning the alleged commission of any crime under [Florida law], knowing such information or report to be false, in that no such crime had actually been committed").
A § 1983 defendant who abuses the power and authority given to her by the state acts under color of state law. See Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir.2001); United States v. House, No. 10-15912, 684 F.3d 1173, 1200, 2012 WL 2343665 at *18 (11th Cir. June 20, 2012). "What [§ 1983] seeks to prevent is the `[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law....'" Dunwoody Homeowners Ass'n, Inc. v. DeKalb Cnty., Ga., 887 F.2d 1455, 1460 (11th Cir.1989) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)). As we have recently had occasion to reiterate, an act is effected under color of law "if it is effected by a law enforcement officer acting `under pretense of law.'" House, 684 F.3d at 1200, 2012 WL 2343665, at *18 (quoting Screws, 325 U.S. at 111, 65 S.Ct. at 1040).
The amended complaint and Butler's briefs leave no doubt that he feels mistreated, and with what appears to be some justification. If the allegations are true, Collier's treatment of Butler was badder than old King Kong and meaner than a junkyard dog. She might even have acted like the meanest hunk of woman anybody had ever seen. Still, the fact that the mistreatment was mean does not mean that the mistreatment was under color of law. Because the alleged mistreatment of Butler was not inflicted under color of law, the district court correctly dismissed his § 1983 claims. Butler will have to seek his remedies under state law and in state court.
Butler's counsel answered: "I don't believe so."