Greg Gardner v. Laura McCullough

USCA11 Case: 23-10809 Document: 45-1 Date Filed: 11/28/2023 Page: 1 of 6

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10809

Non-Argument Calendar

____________________

GREG GARDNER,

as guardian of and for the benefit of Peter Gardner,

Plaintiff-Appellant,

versus

LAURA MCCULLOUGH,

Police Chief, Georgia Southern University

Police Department in her official and individual capacity,

JOSHUA GAGE BARKER,

in his official and individual capacity,

JACOB LANE-ALLEN HEATHERLY,

in his official and individual capacity,

STEPHANIE MCCARTHY,

in her official and individual capacity,

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2 Opinion of the Court 23-10809

JAMES GRACEN, et al.

in his official and individual capacity,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 6:22-cv-00030-JRH-CLR

____________________

Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:

During Peter Gardner’s freshman year at Georgia Southern

University, he was approached by police officers responding to a

report that a man matching Peter’s description was seen in a stu-

dent building taking pictures of a three-year-old girl. Officers re-

viewed photos on Peter’s phone, which included photos and videos

of the young girl as well as other photos taken going up female

skirts and dresses. Peter admitted to being sexually attracted to

girls in underwear and indicated that was why he took photos of

the three-year-old girl. The officers took Peter to the university’s

police station and then to the Bulloch County Sheriff’s Office

where he was booked and remained for six days.

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23-10809 Opinion of the Court 3

Defendant-Appellee Officer Barker, one of the officers who

approached Peter on campus and interviewed him at the police sta-

tion, applied for four arrest warrants for Peter. A magistrate judge

reviewed, signed, and issued the arrest warrants. Peter then ap-

peared before a judge for a bond hearing where he was ordered

confined to his parents’ home unless under direct adult supervision

and prohibited from having access to the internet or inappropriate

television. Several years later, the district attorney’s office dis-

missed the warrants.

Greg Gardner, on behalf of his son, Peter, filed a 42 U.S.C. §

1983 suit against multiple Georgia Southern University police of-

ficers for various claims, including malicious prosecution. The dis-

trict court dismissed the suit for failure to state a claim. Gardner

appeals the dismissal of the malicious prosecution claim, arguing

that the district court erred in finding the officers were not the

cause of the decision to prosecute and that it applied the incorrect

standard regarding probable cause. After careful review of the par-

ties’ arguments, we affirm. 1

To prevail on a § 1983 claim for malicious prosecution

against police officers, the plaintiff “must prove both ‘a violation of

[his] Fourth Amendment right to be free of unreasonable seizures’

and ‘the elements of the common law tort of malicious

1 “We review de novo a dismissal of a complaint for failure to state a claim, and

we accept the allegations in the complaint as true and construe them in the

light most favorable to the plaintiff.” Henderson v. McMurray, 987 F.3d 997,

1001 (11th Cir. 2021).

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4 Opinion of the Court 23-10809

prosecution.’” Williams v. Aguirre, 965 F.3d 1147, 1157 (11th Cir.

2020) (quoting Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019)).

Under the common-law elements of malicious prosecution, a

plaintiff must prove (1) that the officers “instituted or continued” a

criminal prosecution against him, (2) “with malice and without

probable cause,” (3) that terminated in his favor, and (4) that caused

damage to him. Id.

Defendants-Appellees argued below and now on appeal that

Gardner fails at prong one because he cannot demonstrate that the

officers “instituted or continued” Peter’s prosecution. Rather, they

say, two intervening acts broke the chain of causation: the magis-

trate judge who reviewed the warrant applications and issued the

warrants, and the superior court judge who held a bond hearing

and decided to place Peter on home confinement. The district

court agreed and held that Gardner failed at prong one finding that

Gardner had “not sufficiently alleged a claim for malicious prose-

cution against Defendants as there are no allegations they were re-

sponsible for the decision to issue the warrants or to put Peter on

home confinement which are the only possible bases for his mali-

cious prosecution claim.”

On appeal, Gardner argues that our decision in Williams has

altered the analysis regarding the causal chain and that now the

analysis is “whether the officer supplied the magistrate sufficient

and accurate information to find probable cause.” In Williams, we

explained that for plaintiffs who complain of seizure in violation of

the Fourth Amendment, “the relevant injury is the seizure that

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23-10809 Opinion of the Court 5

followed the arrest warrant, not the broader prosecution.” 965

F.3d at 1167. For disputes over seizure following the arrest war-

rant, we ask “whether the officers intentionally provided materially

false statements to support the arrest warrant that justified at least

part of that seizure.” Id. If yes, “such false statements would be

enough to establish a claim of malicious prosecution.”2 Id.

While the district court did not use this exact formula when

deciding that Defendants-Appellees were not the legal cause for Pe-

ter’s prosecution, it did find that “Plaintiff’s Complaint, accepted as

true, does not allege any falsity in Defendant Barker’s warrant ap-

plications.” Because there are no allegations that there were false

statements submitted to support the arrest warrants that were is-

sued for Peter, we agree with the district court that Gardner has

failed to state a claim for malicious prosecution.

* * *

As we understand from Gardner’s briefing, he also argues

dismissal was improper because the district court used the “any-

crime” standard of probable cause, and that under the proper anal-

ysis, the officer who applied for the warrants should have known

2 We understand that the Williams court was analyzing prong four here—

whether the officers had caused damage—but we recognize that the interven-

ing acts of others can be relevant under both prongs one and four of the mali-

cious prosecution analysis. See Eubanks v. Gerwen, 40 F.3d 1157, 1161 (analyz-

ing intervening acts of others under prong one); Barts v. Joyner, 865 F.2d 1187,

1195 (11th Cir. 1989) (analyzing intervening acts of others under prong four);

Williams, 965 F.3d at 1167 (citing both Eubanks and Barts in the prong four

analysis).

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6 Opinion of the Court 23-10809

he lacked probable cause or made misstatements in the warrant ap-

plications. Gardner is correct that we held in Williams that the any-

crime rule does not apply to malicious prosecution and that the

charge-specific standard applies. 965 F.3d at 1162. Along this line,

we ask “whether the judicial officer who made the probable-cause

determination had sufficient, truthful information to establish

probable cause.” Id. at 1163.

This is, however, not relevant to the appeal currently before

us. The district court did not reach a question of probable cause

because, as discussed above, it dismissed the malicious prosecution

claim on prong one—that the officers did not “institute or con-

tinue” a criminal prosecution against Peter. The district court ex-

plicitly acknowledged it was not addressing any other arguments,

including the officers’ arguments that they had probable cause.

Therefore, we will not address Gardner’s arguments regarding

probable cause. We will not address the Defendants-Appellees’ ar-

gument regarding qualified immunity for the same reason.

AFFIRMED.