Harry Barnett v. Justin Elsmore

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12517

Non-Argument Calendar

____________________

HARRY BARNETT,

Plaintiff-Appellant,

versus

JUSTIN ELSMORE,

an individual and in his official capacity,

CITY OF KEY WEST,

a municipal corporation,

Defendants-Appellees.

____________________

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2 Opinion of the Court 23-12517

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 4:22-cv-10089-LFL

____________________

Before ROSENBAUM, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

Harry Barnett sued former Key West Police Officer Justin

Elsmore and the City of Key West, alleging a malicious prosecution

claim against Officer Elsmore and a failure to train claim against

the city. The district court granted Officer Elsmore and the city’s

motion to dismiss on qualified immunity grounds. Barnett appeals

the dismissal and the denial of leave to amend. We affirm.

1

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In late 2015, Barnett took his sick dog to a veterinarian,

Thomas Householder. Dr. Householder misdiagnosed Barnett’s

dog, which led to the dog permanently losing sight. Beginning on

May 9, 2017, Barnett protested Dr. Householder’s veterinary clinic

by displaying signs on the bed of his red Chevy Colorado pick-up

truck, which he left parked in an unrestricted space across the street

from the clinic. He stopped by daily to maintain the signs.

1

Because the district court dismissed Barnett’s complaint, we assume the truth

of his well-pleaded factual allegations. McGroarty v. Swearingen, 977 F.3d 1302,

1306 (11th Cir. 2020).

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23-12517 Opinion of the Court 3

On May 10, 2017, Kimberly Bryant, a hairdresser who

worked at a salon next to the clinic, called the police and falsely

reported the truck was illegally parked, causing Barnett to receive

a parking violation. On May 10, 2017, and May 11, 2017, Linda

Simonet, an employee of the veterinary clinic, made ill-natured re-

marks to Barnett as he was maintaining his signs. On May 15, 2017,

Ms. Simonet took pictures of Barnett as he was sitting inside a

rented SUV near his truck and signs.

On May 17, 2017, Dr. Householder and Ms. Simonet filed

for civil injunctions against Barnett based on false allegations of

stalking and photographing. The state court granted the injunc-

tions and required Barnett to remain at least one hundred feet from

the clinic. Complying with the injunctions, Barnett moved his

truck farther from the clinic but continued to display the signs.

On May 22, 2017, Ms. Simonet and Ms. Bryant told the po-

lice that Barnett violated the injunctions on May 20, 2017, and

May 22, 2017. A police officer took their reports but did not arrest

Barnett. Later that day, Officer Elsmore interviewed both women.

Officer Elsmore interviewed Ms. Simonet at the veterinary clinic.

Ms. Simonet gave Officer Elsmore a copy of the injunction papers

and reported that Barnett drove by in a big red four door truck with

a camper cap. She also mentioned to Officer Elsmore that she was

a retired sheriff. Officer Elsmore did not ask Ms. Simonet follow-

up questions.

Officer Elsmore interviewed Ms. Bryant over the telephone.

Ms. Bryant told Officer Elsmore she saw Barnett and knew it was

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4 Opinion of the Court 23-12517

him because she saw a picture of Barnett on Ms. Simonet’s phone.

Officer Elsmore did not ask for the picture. That night, based on

Ms. Bryant and Ms. Simonet’s statements, Officer Elsmore arrested

Barnett for violating the injunctions. The misdemeanor charges

were later nolle prossed.

Barnett sued Officer Elsmore for malicious prosecution, al-

leging that he was charged without probable cause. Barnett also

sued the city based on municipal liability, alleging it failed to train

its officers properly since Officer Elsmore arrested Barnett without

probable cause. Officer Elsmore and the city jointly moved to dis-

miss Barnett’s complaint. The district court granted the motion.

Barnett appeals the dismissal of his complaint and the denial of

leave to amend.

STANDARD OF REVIEW

We review de novo a district court’s grant of a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6), accepting

the factual allegations in the complaint as true and construing them

in the light most favorable to the plaintiff. McGroarty v. Swearingen,

977 F.3d 1302, 1306 (11th Cir. 2020) (citation omitted). We also

review de novo a district court’s legal conclusion that a proposed

amendment would be futile in denying leave to amend. Harris v.

Ivax Corp., 182 F.3d 799, 802–03 (11th Cir. 1999).

DISCUSSION

We first address the district court’s dismissal of Barnett’s

claim against Officer Elsmore. Then, we consider the dismissal of

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23-12517 Opinion of the Court 5

the claim against the city. And finally, we discuss the district court’s

denial of leave to amend.

Malicious Prosecution Claim Against Officer Elsmore

Qualified immunity protects officers acting within their dis-

cretionary authority unless a plaintiff can show (1) that the officer

violated a constitutional right, and (2) that the right violated was

clearly established. Grider v. City of Auburn, 618 F.3d 1240, 1256

(11th Cir. 2010). Here, Barnett alleged his Fourth Amendment

rights were violated by malicious prosecution when he was

charged with violating the injunctions. Being held without proba-

ble cause is an unreasonable seizure that violates the Fourth

Amendment. Id. But the existence of probable cause defeats a

Fourth Amendment malicious prosecution claim. Id.

“[P]robable cause exists when the facts, considering the to-

tality of the circumstances and viewed from the perspective of a

reasonable officer, establish ‘a probability or substantial chance of

criminal activity.’” Washington v. Howard, 25 F.4th 891, 899 (11th

Cir. 2022) (quoting D.C. v. Wesby, 583 U.S. 48, 57 (2018)). It “does

not require conclusive evidence and ‘is not a high bar.’” Id. (quot-

ing Wesby, 583 U.S. at 57). And an officer is generally entitled to

rely on a victim’s complaint as support for probable cause. Rankin

v. Evans, 133 F.3d 1425, 1441 (11th Cir. 1998).

For qualified immunity purposes, an officer does not need

actual probable cause but only arguable probable cause. Grider, 618

F.3d at 1257. In other words, it is enough if “reasonable officers in

the same circumstances and possessing the same knowledge as the

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Defendants could have believed that probable cause existed to ar-

rest.” Id.

Here, Officer Elsmore had at least arguable probable cause

to charge Barnett. Two witnesses, Ms. Simonet and Ms. Bryant,

reported they saw Barnett drive by the veterinary clinic on two sep-

arate occasions, thus violating the injunctions. Ms. Simonet

worked at the clinic and had multiple previous interactions with

Barnett. Ms. Bryant worked at a neighboring business of the clinic.

Officer Elsmore interviewed them both, and they confirmed they

saw Barnett near the clinic. Officer Elsmore was entitled to rely on

their statements as probable cause to charge Barnett. See Rankin,

133 F.3d at 1441. And their statements were enough for Officer

Elsmore to reasonably believe there was a “probability or substan-

tial chance” that Barnett violated the injunctions. See Washington,

25 F.4th at 899.

Barnett contends that Officer Elsmore did not have probable

cause because another police officer took reports from Ms. Simo-

net and Ms. Bryant earlier that day but did not arrest Barnett. But

arguable probable cause turns on reasonableness and reasonable

officers can come to different conclusions as to whether they

should charge a suspect. See id. (explaining that the probable cause

standard is whether “any particular officer,” not “all prudent” offic-

ers, could believe there was a substantial chance of criminal activ-

ity). Thus, even if another officer did not believe there was proba-

ble cause, it would not make Officer Elsmore’s belief necessarily

unreasonable.

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Barnett further argues Officer Elsmore did not have proba-

ble cause because he told Barnett he was being arrested for a fel-

ony, despite saying that the offense fell under a misdemeanor ex-

ception. But the focus of a Fourth Amendment malicious prosecu-

tion claim is on the legal process under which the plaintiff was held.

See Williams v. Aguirre, 965 F.3d 1147, 1158 (11th Cir. 2020) (“Mali-

cious prosecution, in contrast, requires a seizure pursuant to legal

process. . . . A Fourth Amendment violation involving these sei-

zures occurs when legal process itself goes wrong—when, for ex-

ample, a judge’s probable-cause determination is predicated solely

on a police officer’s false statements.” (citations and quotations

omitted)). Here, according to Barnett’s complaint, he was charged

with misdemeanor violations of the injunctions. Whatever Officer

Elsmore told Barnett, it did not impact Barnett’s malicious prose-

cution claim.

Finally, Barnett argues that Officer Elsmore’s investigation

was so inadequate that it resulted in Barnett’s prosecution without

probable cause. Officer Elsmore, Barnett contends, did not ques-

tion evidence suggesting Barnett’s guilt; he did not gather more ev-

idence before making the arrest; and he ignored exculpatory evi-

dence about Barnett’s car that suggested Barnett’s innocence.

While an officer must conduct a reasonable investigation to

establish probable cause, he need not take “every conceivable

step. . . at whatever cost, to eliminate the possibility of convicting

an innocent person.” Tillman v. Coley, 886 F.2d 317, 321 (11th Cir.

1989); see also Rankin, 133 F.3d at 1436 (explaining that an officer

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8 Opinion of the Court 23-12517

making an arrest based on probable cause “need not ‘investigate

independently every claim of innocence”). And an officer is not

required to forgo making an arrest because a suspect proclaims his

innocence. Davis v. City of Apopka, 78 F.4th 1326, 1342 (11th Cir.

2023).

An officer may not ignore “[c]oncrete evidence that obvi-

ously and definitively rules out probable cause,” Id. at 1344, but he

is not required to seek out exculpatory evidence, Kelly v. Curtis, 21

F.3d. 1544, 1551 (11th Cir. 1994). Nor is he required “to weigh the

evidence in such a way as to conclude that probable cause did not

exist.” Washington, 25 F.4th at 902. Ultimately, an officer is not

“required to sift through conflicting evidence or resolve issues of

credibility, so long as the totality of the circumstances present[ed]

a sufficient basis for believing that an offense ha[d] been commit-

ted.” Huebner v. Bradshaw, 935 F.3d 1183, 1188 (11th Cir. 2019).

Here, Ms. Simonet and Ms. Bryant told Officer Elsmore the

same story—that Barnett drove by the clinic two times. Based on

these statements, Officer Elsmore could have reasonably believed

there was enough for “a probability or substantial chance” that Bar-

nett violated the injunctions. See Washington, 25 F.4th at 899. Of-

ficer Elsmore was not required to interrogate Ms. Simonet and

Ms. Bryant and learn every conceivable detail of the incident or

take “every conceivable step” to eliminate the possibility of Bar-

nett’s innocence. See Tillman, 886 F.2d at 321; see also Huebner, 935

F.3d at 1190 (finding probable cause based only on a victim’s

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statement when “[the victim’s] statement gave [the officer] every-

thing he needed”).

Once Officer Elsmore established probable cause, he was

not required to seek out exculpatory evidence, to forego making

an arrest, or to launch into an investigation so Barnett could pro-

claim his innocence. See Kelly, 21 F.3d at 1551; Davis, 78 F.4th at

1342; see also Huebner, 935 F.3d at 1190 (holding a battery investiga-

tion was not inadequate when an officer made an arrest based

solely on an alleged victim’s statement without interviewing two

eyewitnesses). The fact that Barnett was driving a different truck

when he was stopped—an hour after Officer Elsmore interviewed

Ms. Simonet, and presumably more time after Barnett was said to

have driven by the clinic—does not amount to “[c]oncrete evi-

2

dence that obviously and definitively rule[d] out probable cause.”

See Davis, 78 F.4th at 1344; id. at 1349 (explaining that an officer is

not required to resolve every inconsistency in the evidence before

making an arrest).

2

It’s worth noting that, as alleged, Barnett used a red truck to display his pro-

test signs and drove other vehicles to and from the clinic to maintain the signs.

But even assuming that Officer Elsmore, who went to the veterinary clinic to

interview Ms. Simonet, did not see the red truck and did not know Barnett

used multiple cars, the fact that Barnett was in a different colored truck over

an hour after the suspected offense would not rise to concrete evidence that

would preclude a finding of probable cause. See Davis, 78 F.4th at 1344.

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10 Opinion of the Court 23-12517

Indeed, the alleged exculpatory evidence here is much

weaker than evidence this Court previously found ruled out prob-

able cause, such as “multiple tattoos on the perpetrator’s arm,

which the suspect did not have; documents showing authorization

to be in a house, which conclusively established innocence; or a

description of a marijuana-seller in her twenties while the person

arrested was in her forties.” See id. at 1344 (cleaned up) (citing Elev-

enth Circuit cases). Officer Elsmore was not required “to weigh

the evidence in such a way as to conclude that probable cause did

not exist.” See Washington, 25 F.4th at 902. Based on Ms. Simonet’s

and Ms. Bryant’s statements, Officer Elsmore could have reasona-

bly believed Barnett violated the injunctions, and he was not re-

quired “to sift through conflicting evidence or resolve issues of

credibility” before making the arrest. Huebner, 935 F.3d at 1188.

Municipal Liability Claim Against the City of Key West

For municipal liability, a plaintiff must show: “(1) that his

constitutional rights were violated; (2) that the municipality had a

custom or policy that constituted deliberate indifference to that

constitutional right; and (3) that the policy or custom caused the

violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).

Since Barnett failed to plead that his Fourth Amendment rights

were violated by Officer Elsmore, he also necessarily failed to plead

any underlying constitutional violation for his municipal liability

claim against the city. Id.

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Denial of Leave to Amend Complaint

Typically, a district court must give a pro se plaintiff at least

one chance to amend before the district court dismisses the com-

plaint with prejudice. Woldeab v. DeKalb Cnty. Bd. of Educ., 885 F.3d

1289, 1291 (11th Cir. 2018). But a district court need not grant leave

to amend when “a more carefully drafted complaint could not state

a claim.” Id. (citation omitted).

Here, Barnett could not state a claim for malicious prosecu-

tion as the facts show that there was at least arguable probable

cause for the misdemeanor charges. Indeed, the crux of Barnett’s

allegations is that Dr. Householder, Ms. Simonet, and Ms. Bryant

lied to have injunctions granted against Barnett and lied to have

Barnett arrested for violating those injunctions. As to Officer Els-

more, however, the allegations are simply that he should have

done more to discover that the others were lying. We have clearly

rejected such an argument. See, e.g., Davis, 78 F.4th at 1351 (“[Plain-

tiff] asks us to assume the role of Investigator-in-Chief and criticize

the investigation the officers made, finding it wanting based on his

assertions that they should have done more or done it better. He

assumes that if the officers had interviewed more people, or asked

more questions of those they did interview, they might have found

something to exonerate him. His invitation . . . runs directly con-

trary to binding precedent.”).

AFFIRMED.