Tyrone Anthony Kemp v. Kevin Pogorzelski

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-11519

Non-Argument Calendar

____________________

TYRONE ANTHONY KEMP,

Plaintiff-Appellant,

versus

KEVIN POGORZELSKI,

in his individual capacity,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:23-cv-05368-TWT

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2 Opinion of the Court 24-11519

____________________

Before ROSENBAUM, ABUDU, and ANDERSON, Circuit Judges.

PER CURIAM:

Tyrone Kemp appeals the dismissal of his lawsuit alleging

that Officer Kevin Pogorzelski violated his federal constitutional

rights and Georgia state law when Pogorzelski omitted facts and

misrepresented others in the affidavit for the warrant for Kemp’s

arrest. The district court dismissed the complaint on qualified and

official immunity grounds.

We write only for the parties who are already familiar with

the facts. Accordingly, we set out only so much of the facts as is

necessary to understand our opinion.

Kemp brought a claim under 42 U.S.C. § 1983 against Pogor-

zelski for malicious prosecution in violation of the Fourth Amend-

ment. Kemp also brought a state law claim of malicious prosecu-

tion. In his complaint, Kemp pointed to several instances in the

arrest warrant affidavit where he alleged that Pogorzelski either

omitted exculpatory facts or misstated the facts he gleaned from

witnesses. Following the arrest warrant, Kemp was arrested and

spent four years in pre-trial incarceration until a jury found him not

guilty. Recognizing that probable cause (or arguable probable

cause in light of the qualified immunity defense) would defeat

Kemp’s claim, the district court accepted Kemp’s alleged omissions

and misrepresentations as true, and then added the missing facts

and corrected the erroneous ones. In other words, the district

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24-11519 Opinion of the Court 3

court reconstructed the affidavit in accordance with our established

law, as discussed below. The district court concluded that the cor-

rected affidavit established arguable probable cause and granted

Pogorzelski qualified immunity on the federal claim. It then dis-

missed the state law claims on the basis of official immunity be-

cause Kemp’s allegations did not support a reasonable inference of

actual malice, which he needed to show to overcome the standard

for official immunity.

I. STANDARD OF REVIEW

We review a district court’s dismissal for failure to state a

claim de novo. Veritas v. Cable News Network, Inc., 121 F.4th 1267,

1274 (11th Cir. 2024). “We accept factual allegations in the com-

plaint as true and construe them in the light most favorable to the

plaintiff.” Id. “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 (2009).

II. INCORPORATION BY REFERENCE

Before we address the merits of Kemp’s claims, we must

address what we can consider. Kemp asserts that the district court

erred when it did not consider the transcript of eyewitness White

when determining what was omitted or incorrect in the affidavit.

Kemp argues that the district court should have incorporated by

reference the transcript because it was referred to in the com-

plaint and is unchallenged. Kemp also argues that the district

court erred when it used the College Park Police Department

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Property Record to clarify what types of bullets were found at the

crime scene.

“[T]he incorporation-by-reference doctrine only has two

requirements: that the document be “(1) central to the plaintiff’s

claim; and (2) undisputed.” Johnson v. City of Atlanta, 107 F.4th

1292, 1298 (11th Cir. 2024). The transcript is indisputably central

to Kemp’s claims because two of the four errors he identified in

the affidavit were confirmed by the transcript, the original source

of the information. However, the district court was correct that it

could use the Property Record because it, too, was central to

Kemp’s claim and was even cited in his complaint. So, we con-

clude that the district court did not err when it considered the

Property Record. With respect to the transcript of Pogorzelski’s

interview with witness White, we conclude that the transcript

qualifies to be incorporated by reference; however, we conclude

below that consideration of same does not undermine the affida-

vit’s establishment of arguable probable cause.

III. QUALIFIED IMMUNITY

Qualified immunity protects government officials perform-

ing discretionary functions “from liability for civil damages insofar

as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Officers have

“the burden to establish that they were acting within their discre-

tionary authority” when raising qualified immunity as a defense.

Ingram v. Kubik, 30 F.4th 1241, 1250 (11th Cir. 2022). If the officers

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24-11519 Opinion of the Court 5

satisfy that burden, then the burden shifts to the plaintiff to estab-

lish that (1) “the defendant violated a constitutional right,” and (2)

“the violation was clearly established.” Christmas v. Harris County,

51 F.4th 1348, 1354 (11th Cir. 2022) (quotation marks omitted).

The Fourth Amendment protects citizens “against unrea-

sonable searches and seizures.” U.S. Const. amend. IV. “[A]n arrest

is a ‘seizure’ of the person” under the Fourth Amendment. Case v.

Eslinger, 555 F.3d 1317, 1326 n.10 (11th Cir. 2009). Whether a sei-

zure is reasonable hinges on the presence of probable cause. See id.

at 1326. In other words, the presence of probable cause for the

arrest bars a plaintiff’s claim for malicious prosecution. Paez v. Mul-

vey, 915 F.3d 1276, 1286 (11th Cir. 2019) (holding probable cause to

arrest appellees on the charged “would defeat the Appellees’ § 1983

malicious prosecution claims.”). To determine whether an officer

had probable cause for an arrest, “we examine the events leading

up to the arrest, and then decide ‘whether these historical facts,

viewed from the standpoint of an objectively reasonable police of-

ficer, amount to’ probable cause.” Maryland v. Pringle, 540 U.S. 366,

371 (2003) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).

Probable cause “is not a high bar,” and “‘requires only a probability

or substantial chance of criminal activity, not an actual showing of

such activity.’” Paez, 915 F.3d at 1286 (quoting D.C. v. Wesby, 583 U.S.

48, 57 (2018)). It is a “flexible and fluid concept” that focuses on the

“totality of the circumstances.” Id. at 1286.

In deciding whether probable cause exists, arresting officers

“are not required to sift through conflicting evidence.” Id. (quoting

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Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir. 2002)). Because law en-

forcement officers are not lawyers, “we do not expect them to re-

solve legal questions or to weigh the viability of most affirmative

defenses.” Id. at 1286 (citing Williams v. City of Albany, 936 F.2d 1256,

1260 (11th Cir. 1991)). “[T]he presence of some conflicting evi-

dence or a possible defense will not vitiate a finding of probable

cause.” Id. at 1287.

We use a two-part test to determine whether a misstatement

in an officer’s warrant affidavit amounts to a violation of the

Fourth Amendment. Id. “First, we ask whether there was an inten-

tional or reckless misstatement or omission. Then, we examine the

materiality of the information by inquiring whether probable

cause would be negated if the offending statement was removed or

the omitted information included.” Id. In other words, in a case

like Paez and this case, we assume that the facts alleged in the com-

plaint are true and thus we assume that Pogorzelski recklessly dis-

regarded the truth, and we focus on the other required prong of

Kemp’s proof—the materiality prong. We ask whether the affidavit

for Kemp’s arrest warrant still would have established probable

cause if Pogorzelski had included the omitted facts and corrected

the erroneous ones. See id. (“Our only question then is whether

the affidavit still would have established probable cause . . . if [the

officers] had included the omitted information that they knew

about. If so, [the officers] did not violate the Fourth Amend-

ment.”).

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Using this guidance from established law, the district court

here corrected the misstatements Kemp identified in his com-

plaint and added in the facts Kemp deemed crucial but missing

from the affidavit. Those misstatements included that Kemp was

wearing a white shirt, blue jeans, and white sneakers when in fact

he was wearing long pants that probably were not blue jeans. The

other misstatement was that the shooter ran in the direction of

building 6 whereas witness White said that the shooter ran in the

direction of buildings 12 and 14. The affidavit also omitted that

Kemp collected bullets from the cars he detailed. 1

On appeal, Kemp argues that the district court’s recon-

structed affidavit was incomplete because it did not include other

errors that he identified in his response to Pogorzelski’s motion to

dismiss. Those errors included that Pogorzelski’s affidavit re-

ported that witness White identified the shooter as a black male

whereas the actual transcript reveals that White did not explicitly

identify the shooter’s race. Kemp’s response to the motion to dis-

miss also raised for the first time: the omission of the lack of fo-

rensic evidence tying Kemp to the crime; the omission of the fact

that witness White knew the victim; the omission of witness Hol-

land’s statement that she saw Kemp shortly after the shooting and

he seemed “cool and normal;” and the omission of theories being

1 Kemp argues that the district court could not make the determination of ar-

guable probable cause and that it was a matter reserved for a jury. However,

in Paez, which Kemp cites, we approved the use of a motion to dismiss on

qualified immunity grounds where omitted evidence was added to the chal-

lenged affidavit and we held that arguable probable cause existed.

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floated by neighbors about what happened. Kemp also asserts

that the district court erred when it stated that one of the bullets

found at the crime scene matched one of the shell casings found

at the scene of the murder—i.e. he argues that the court should

have construed the complaint in the light most favorable to the

plaintiff and found that they did not match.2

We can assume arguendo—although not decide—that the

additional omissions and errors raised in the response to the mo-

tion to dismiss should have been considered by the district court.

We hold that the affidavit—when the omissions are added and

when the mistakes are corrected—still establishes arguable proba-

ble cause. All of the mistakes and omissions identified by Kemp—

both those alleged in the complaint and those belatedly asserted in

Kemp’s response to Pogorzelski’s motion to dismiss—do not un-

dermine the more powerful evidence identified by Pogorzelski that

implicated Kemp. We find very persuasive the evidence of the tim-

ing of Kemp and the victim’s interactions and Kemp’s negative re-

sponse upon learning that the victim was a transgender woman.

Kemp was the last known person to be with the victim and he was

upset to learn that she was transgender. In the evening before the

4 a.m. murder, Kemp had arranged on an internet dating site for a

date with the victim. The victim told Kemp while driving to a bar

2 The district court did not err in this regard: the “Search Warrant Inventory

List,” central to Kemp’s claim, states that one CBC .45 bullet was found in

Kemp’s apartment and the “Property Record” states that one CBC .45 bullet

was found at the scene of the crime.

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that she was transgender; Kemp was upset and told the victim to

take him home to his apartment, which the victim did. While the

victim was still in the apartment parking lot, Kemp made a

Facetime call to the victim and the murder occurred just a few

minutes after that phone call. Although Kemp had told Pogor-

zelski that, just before the murder, he had lost the cellphone which

made that call, Kemp’s friend, witness Holland, told officers that

Kemp had not lost the cellphone, but rather had changed his cell

phone’s number after the murder. Also, video footage from the

convenience store where Kemp told the officer he had lost his

phone does not show him at the convenience store where and

when he said he lost the phone. While the affidavit’s description

of the pants Kemp was wearing may not have been accurate, the

rest of the affidavit’s description of Kemp was accurate; he is about

5 feet six inches tall and was wearing a white shirt and white sneak-

ers in the video.

After correcting the misstatements and adding the omitted

facts, we readily conclude that there was arguable probable case.

See Paez, 915 F.3d at 1286. Accordingly, we affirm the district court’s

judgment holding that Pogorzelski is entitled to qualified immun-

ity and granting his motion to dismiss.3

3 We also affirm the district court’s dismissal of Kemp’s state law claim of ma-

licious prosecution. Although Kemp labels a section of his brief “Malicious

Prosecution,” he discusses the federal law and only briefly addresses in his last

paragraph the Georgia official immunity that was the basis of the dismissal of

his state law claims. Georgia law requires a showing of actual malice to over-

come official immunity, which the Georgia Supreme Court has defined as “a

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IV. AMENDED COMPLAINT

Kemp argues that the district court erred when it did not

rule on his motion to amend his complaint and it should have al-

lowed him to do so. We review the denial of a motion to amend a

complaint for an abuse of discretion. Fla. Evergreen Foliage v. E.I.

DuPont De Nemours & Co., 470 F.3d 1036, 1040 (11th Cir. 2006).

Here, the additional errors identified in the amended complaint

were the same as those discussed above and thus do not have un-

dermine the arguable probable cause. Thus, the district court did

not abuse its discretion when it implicitly denied the motion.

AFFIRMED.

deliberate intention to do wrong.” Gates v. Khokhar, 884 F.3d 1290, 1304 (11th

Cir. 2018). Given that we have held that arguable probable cause existed and

Kemp has not alleged any facts that would support a nefarious intent or malice

on Pogorzelski’s part, we reject Kemp’s challenge to the district court’s finding

of official immunity with respect to Kemp’s state law claim.