Case: 19-10819 Date Filed: 07/29/2019 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10819
Non-Argument Calendar
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D.C. Docket No. 2:18-cv-00475-SPC-MRM
GELU TOPA,
Plaintiff-Appellant,
versus
ALMONTE KERBS,
OFFICER ROCHELLE MEJIAS,
et al, Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 29, 2019)
Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Gelu Topa, proceeding pro se, appeals the dismissal of his 42 U.S.C. § 1983
action, alleging entrapment and false arrest, for failing to state a claim upon which
relief may be granted and for improperly serving the complaint. On appeal, Topa
argues that the police failed to follow procedures during his arrest and
subsequently filed a false police report. Topa does not argue that process was
properly served.
I.
A district court’s dismissal for failure to state a claim is reviewed de novo.
Am. United Life Ins. Co. v. Martinez,
480 F.3d 1043, 1056–57 (11th Cir. 2007).
The complaint is viewed in the light most favorable to the plaintiff, and all of the
plaintiff’s well-pleaded facts are accepted as true.
Id. at 1057. To survive a
motion to dismiss, a plaintiff’s factual allegations must state a claim to relief that is
plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A plausible claim is one which
allows a court to draw reasonable inferences that the defendant is liable for the
claims.
Id. Pro se pleadings are liberally construed and held to less stringent
standards than pleadings drafted by attorneys. Campbell v. Air Jam. Ltd.,
760 F.3d
1165, 1168–69 (11th Cir. 2014). However, this leniency does not allow courts to
serve as de facto counsel or to rewrite pro se pleadings.
Id.
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Entrapment is an affirmative defense in criminal prosecutions requiring the
defendant to produce evidence showing that the government induced the crime and
that the defendant was otherwise not predisposed to commit the crime. United
States v. Rutgerson,
822 F.3d 1223, 1234 (11th Cir. 2016). Whether a defendant
was predisposed to commit the crime is a “fact-intensive and subjective inquiry”
centered on the defendant’s readiness and willingness to engage in the crime.
Id.
at 1235. A § 1983 claim for false arrest requires the plaintiff to show he was
arrested without probable cause. District of Columbia v. Wesby,
138 S. Ct. 577,
584, 589 & n.6 (2018). Probable cause exists where circumstances create a
probability or substantial chance of criminal activity; probable cause is not a high
bar.
Id. at 586.
Topa’s second amended complaint, liberally construed, does not assert facts
sufficient to state a claim upon which relief may be granted. To the extent
entrapment provides grounds for a § 1983 claim, Topa has failed to show that he
was coerced into, or otherwise not predisposed to, solicit a prostitute. Topa
asserted that when the woman came to his car window, he immediately went along
with her and gave her the impression he was interested. This readiness to go along
with the woman suggests instead that Topa was predisposed to solicit a prostitute.
Topa made no assertions that he was initially hesitant to engage with the woman or
was in any way coerced into telling the woman he was interested. Thus, the
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district court properly dismissed this claim upon the defendants’ 12(b)(6) motion.
Additionally, Topa has failed to show that the officers did not have probable cause
to arrest him for said crime. By asserting that he showed interest in the woman and
had her wait for him elsewhere, Topa created circumstances showing a substantial
chance of criminal activity. Accordingly, we conclude that the district court did
not err in dismissing Topa’s second amended complaint for failure to state a claim
pursuant to the defendants’ 12(b)(6) motion and affirm.
AFFIRMED
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