Harry L. McCall v. Frisky Whisky , 587 F. App'x 519 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11878
Non-Argument Calendar
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D.C. Docket No. 3:13-cv-00079-TCB
HARRY L. MCCALL,
Plaintiff-Appellant,
versus
FRISKY WHISKY,
a Georgia Business,
TWYLA LATOYA JACKSON,
is an Employee of Frisky Whisky,
ELIZABETH ANN ALANIZ, MARK CAVENDAR,
in his official and individual capacities as a Police
Official for the City of LaGrange, Georgia Police Department,
Defendants-Appellees,
THE CITY OF LAGRANGE, et al.,
Defendants.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 17, 2014)
Before MARCUS, WILLIAM PRYOR and MARTIN, Circuit Judges.
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PER CURIAM:
Harry L. McCall, proceeding pro se, appeals the district court’s grant of
summary judgment to the defendants on his complaint raising state law claims of
malicious prosecution, assault, and battery, as well as claims of false arrest and
false imprisonment in violation of 42 U.S.C. § 1983. He argues that: (1) the
district court erroneously granted summary judgment to Frisky Whisky, Twyla
Jackson, and Elizabeth Alaniz because Jackson and Alaniz lacked probable cause
to believe he committed theft when they reported a theft to the police; and (2) the
district court erroneously granted summary judgment to Mark Cavender on the
basis of qualified immunity and official immunity because Officer Cavender used
excessive force while arresting him and did not identify himself as an officer.
After thorough review, we affirm. 1
We review a grant of summary judgment de novo, applying the same legal
standard the district court used, and viewing all evidence and reasonable inferences
from that evidence in the light most favorable to the non-movant. Burton v.
Tampa Hous. Auth., 271 F.3d 1274, 1276-77 (11th Cir. 2001). We read pro se
briefs liberally, but issues not briefed by a pro se appellant are deemed abandoned.
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). If an appellant fails to
challenge one of the multiple grounds on which a district court based its judgment,
1
In addition, Appellant’s motion to amend his reply brief is GRANTED.
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he has abandoned any challenge to that ground, and the judgment will be affirmed.
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
Summary judgment is appropriate when the movant shows that there is no
genuine dispute of material fact and that he is entitled to judgment as a matter of
law. McCullough v. Antolini, 559 F.3d 1201, 1204 (11th Cir. 2009). To overcome
a motion for summary judgment, the non-movant must show facts in dispute
raising a genuine issue of fact material to the underlying legal issue. Id. at 1205.
The existence of some factual dispute does not prevent summary judgment. Id.When the non-movant does not respond to the statement of undisputed fact in
accordance with local rules, the district court may disregard the non-movant’s
evidence. Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008).
First, we are unpersuaded by McCall’s claim that the district court
erroneously granted summary judgment to Frisky Whisky, Jackson, and Alaniz. In
Georgia, a plaintiff who claims malicious prosecution must show: (1) prosecution
for a criminal offense; (2) instigated without probable cause; (3) with malice; (4)
under a valid warrant, accusation, or summons; (5) which has terminated favorably
to the plaintiff; and (6) has caused damage to the plaintiff. Kelly v. Serna, 87 F.3d
1235, 1240-41 (11th Cir. 1996). Probable cause for the prosecution is shown if the
facts at the time the prosecution was initiated would lead a person of ordinary
caution to entertain a belief that the accused was guilty of the charged offense.
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Wal-Mart Stores, Inc. v. Blackford, 449 S.E.2d 293, 294 (Ga. 1994). The essential
question is whether the defendant had reasonable cause to believe that the plaintiff
was guilty of the alleged offense. McKissick v. Aydelott, 705 S.E.2d 897, 902
(Ga. Ct. App. 2011). Because the plaintiff must show that the defendant could
have had no reasonable ground to initiate prosecution, the plaintiff’s claim of
malicious prosecution fails if some circumstances point to the plaintiff’s guilt.
Kelly, 87 F.3d at 1241.
After resolving all issues of material fact in McCall’s favor, the district court
did not err by granting summary judgment to Frisky Whisky, Jackson, and Alaniz.
It is undisputed that Jackson believed that McCall did not tender enough money to
purchase his lottery tickets. McCall argues that Jackson may have taken the
missing money and not admitted the theft to Alaniz or the police, but he provides
no evidence to this effect. It is also undisputed that Alaniz knew that McCall was
accused of not paying for the tickets and that he left the store with the tickets when
she called the police. On this record, she had reasonable cause to believe that
McCall was guilty of theft, and thus, had probable cause when she initiated the
prosecution. As a result, the district court did not err in concluding that McCall
failed to prove an element of malicious prosecution and in granting summary
judgment to these defendants.
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We are also unconvinced by McCall’s argument that the district court
erroneously granted summary judgment to Officer Cavender. In Georgia, state
employees are entitled to official immunity from suit for their discretionary acts
unless they act with actual malice. Hoyt v. Cooks, 672 F.3d 972, 981 (11th Cir.
2012). Actual malice requires a deliberate intention to do wrong, and it does not
include reckless disregard for the rights or safety of others. Id. Georgia law
enforcement officers act within their discretionary powers when performing off-
duty arrests and are entitled to official immunity for such arrests. See Delong v.
Domenici, 610 S.E.2d 695, 698 (Ga. Ct. App. 2005).
For starters, although McCall claims that the district court erroneously
granted Officer Cavender qualified immunity, he does not argue that it erroneously
concluded that Cavender had probable cause to arrest him. As the record shows,
the district court concluded that Cavender was entitled to summary judgment for
McCall’s false arrest and false imprisonment claims because Cavender had
probable cause to arrest McCall. But McCall has not even disputed the finding of
probable cause. Therefore, we affirm its grant of summary judgment on those
claims. Sapuppo, 739 F.3d at 680.2
2
Moreover, McCall raised his excessive force claim for the first time in his response to
Cavender’s motion for summary judgment. Accordingly, the district court did not err by not
considering this claim, since a plaintiff is not permitted to amend his complaint through an
argument in a brief opposing summary judgment. Gilmour v. Gates, McDonald & Co., 382 F.3d
1312, 1315 (11th Cir. 2004).
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As for the remaining claims of state law assault and battery, because Officer
Cavender acted within his discretionary powers when arresting McCall, McCall
must show that he acted with actual malice to overcome official immunity.
However, McCall presents no evidence that Cavender acted with malice when
arresting him. Therefore, the district court did not err by granting Cavender
official immunity for McCall’s claims of assault and battery.
AFFIRMED.
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