Sandra Gray v. The City of Roswell

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10817
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-02799-TWT
SANDRA GRAY,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
THE CITY OF ROSWELL,
PATRICK C. FERDARKO,
BRANDON CRAWFORD,
NICK MARIANI,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(August 13, 2012)
Before BARKETT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
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Plaintiff, Sandra Gray, filed suit pursuant to 42 U.S.C. § 1983 against the
City of Roswell, (“City”) Georgia, and Officers Patrick Ferdarko, Brandon
Crawford, and Nick Mariani (“Officers,” collectively with the City, “Defendants”)
claiming violations of her Fourth and Fourteenth Amendment rights. Defendants
filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). Gray
filed a Motion for Partial Summary Judgment. The district court granted
Defendants’ motion and dismissed Gray’s motion as moot. After reviewing the
Complaint and the parties’ briefs we affirm the district court as to the City, but we
reverse the district court’s dismissal of the claims against the Officers.
I. Background1
This suit arises from the Officers’ response to a dispute at Gray’s home.
Gray permitted Gregory Pompelia to reside in her home as a guest while he
recovered from surgery because he was homeless. Gray alleges in her complaint
that there was no formal agreement between herself and Pompelia. Instead, they
had an oral agreement which required Pompelia to exhibit good behavior and
contribute a modest sum to household expenses.
In January 2011, Pompelia began to exhibit poor behavior, and Gray
1
Because this is an appeal from a motion to dismiss, we take all facts pleaded in the
complaint as true and construe the facts in the light most favorable to Gray. See Belanger v.
Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009).
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ordered him to leave her home. Pompelia refused. On February 9, 2011, Gray
changed all the locks on her home and carefully removed all of Pompelia’s things
from her home. She put all of his property in the back of a pickup truck and
covered it with a tarp to protect it from the elements. She specifically alleges that
she did not damage any of Pompelia’s property in the process.
When Pompelia returned to Gray’s home and found that he could not enter
the premises, he called the Roswell police department. Officers Ferdarko,
Crawford, and Mariani responded to the call. When Gray saw the officers
approaching her home, she opened her front door and advised the officers that the
dispute between herself and Pompelia was a “civil matter.” At some point during
the dispute, Gray gave permission for Ferdarko to enter her home.
Inside her home, she explained to Ferdarko that Pompelia was only a guest
and that she did not want Pompelia in her home because she felt that Pompelia was
a threat to her and her property. Ferdarko insisted that she must let Pompelia back
into her home. Ferdarko informed Gray that unless she let Pomopelia back into
her home, Ferdarko would arrest her. Gray, informing the officers that she was an
attorney and knew her rights, stated that this was a purely civil matter, not a
criminal matter, and that the officers had no right to force her to permit Pompelia
back into her home.
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One of the officers then exited the home and asked Pompelia to make a list
of property that Gray had damaged. Pompelia claimed that Gray had caused
$5,600.00 worth of damage to his property. Gray then specifically alleges in her
complaint (1) “That Defendants did not see any damage to the property, and did
not inspect the property that was in the back of Plaintiff’s truck” and (2) “That by
Defendant Ferdarko’s own admission, in his incident report, the alleged list of
damaged property included items which Ferdarko states he saw, and that he saw
no damage to said items.” Still, Ferdarko trusted Pompelia and arrested Gray on
the charge of felony criminal damage to property. The Officers then permitted
Pompelia to remain in Gray’s home while she was in jail.
II. Standard of Review
We review de novo a district court’s grant of a motion to dismiss. Mills v.
Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008). “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, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted). The
plaintiff need only plead facts that permit a court “to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. The “plausibility
standard” requires a plaintiff to only show “more than a sheer possibility that a
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defendant has acted unlawfully.” Id.III. Claim Against the City of Roswell
Gray claims that (1) the City failed to properly train the Officers, (2) the
Officers actions were within the policy, practice, custom, or procedure of the City,
(3) the City ratified the Officers’ conduct, and (4) all City officers routinely violate
the Fourth and Fourteenth Amendments.
In Monell v. Department of Social Services of City of New York, 436 U.S.
658, 98 S. Ct. 2018 (1978), the Supreme Court explained the boundaries of
municipal liability under § 1983. A municipality may only be held liable for the
actions of law enforcement officers when official policy or custom causes the
constitutional violation. Id. at 694, 98 S. Ct. at 2037–38. Gray does not recite any
facts or policies which would support a claim against the City. Gray only makes
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements.” Iqbal, 556 U.S. at 678, 126 S. Ct. at 1949. This is not
sufficient to survive a motion to dismiss, and the district court properly dismissed
the claims against the City.
IV. Claim Against the Officers
The district court found that the Officers were protected from Gray’s claims
by qualified immunity. An officer is not entitled to qualified immunity when,
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acting in his discretionary capacity, he violates clearly established constitutional
or federal law of which a reasonable person would have known. See Koch v.
Rugg, 221 F.3d 1283, 1294 (11th Cir. 2000). When responding to Pompelia’s call,
the Officers were acting in their discretionary capacity as law enforcement
officers. Therefore, our analysis focuses on whether Gray’s Complaint alleges
facts sufficient to support a claim that the Officers violated clearly established law.
See Rehberg v. Paulk, 611 F.3d 828, 838–39 (11th Cir. 2010). We decide
whether the facts alleged in the Complaint show a violation of clearly established
law by “(1) defining the official’s conduct, based on the record and viewed most
favorably to the non-moving party, and (2) determining whether a reasonable
public official could have believed that the questioned conduct was lawful under
clearly established law.” Koch at 1295–96 (footnote omitted).
“A warrantless arrest is constitutionally valid only when there is probable
cause to arrest.” Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003) (citing
United States v. Watson, 423 U.S. 411, 417, 96 S. Ct. 820 (1976)). An officer has
probable cause to arrest if the “arrest is objectively reasonable based on the totality
of the circumstances.” Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir.
2004). An arrest is objectively reasonable when “the facts and circumstances
within the officer’s knowledge, of which he or she has reasonably trustworthy
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information, would cause a prudent person to believe, under the circumstances
shown, that the suspect has committed . . . an offense.” Id. (emphasis added). An
officer may not “conduct an investigation in a biased fashion or elect not to obtain
easily discoverable facts.” Id. at 1229 (finding that information that could be
uncovered by searching a truck for drugs and interviewing available witnesses
constituted “easily discoverable facts”). Although an officer is not required to
eliminate every theoretical possibility, an officer may not “turn[] a blind eye to
immediately available exculpatory information.” Id. at 1229 n. 10.
Here, the Officers must show that they had probable cause to arrest Gray for
criminal damage to property. In Georgia, criminal damage to property in the
second degree occurs when a person “(1) Intentionally damages any property of
another person without his consent and the damage thereto exceeds $500.00; or (2)
Recklessly or intentionally, by means of fire or explosive, damages property of
another person.” O.C.G.A. § 16-7-23. The Officers only basis for asserting
probable cause to arrest Gray was Pompelia’s claim that Gray caused $5,600.00
worth of damage to his property. Gray alleges in her Complaint that she carefully
removed Pompelia’s property from her house and did not damage any of his
property. She further alleges that at the time of her arrest Ferdarko knew that at
least some of the property that Pompelia claimed was damaged was not actually
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damaged. Assuming that this is true and drawing all inferences in favor of Gray,
as we must, the Officers knew of exculpatory evidence and “failed to investigate
both sides of the story.” Kingsland, 382 F.3d at 1229. The Officers, after learning
that some of the property was not damaged, were no longer justified in relying
solely on Pompelia’s claims. At that point, a reasonable officer would, at the very
least, further investigate to see if Gray had actually damaged any property. This is
especially true when the investigation into the allegedly damaged property only
required the Officers to ask Pompelia to show them his damaged property. See id.
It is a reasonable inference from the Complaint that the Officers had reason to
believe that Pompelia was not providing “reasonably trustworthy information.”
Therefore, the Officers did not have probable cause to arrest Gray until they
verified some of Pompelia’s statements. Thus, at this stage of the proceedings, the
Officers are not entitled to qualified immunity.2
V. Conclusion
We affirm the grant of the motion to dismiss as to the City. We reverse the
granting of the motion to dismiss as to the Officers, because based on the
2
Both parties make arguments regarding the exclusive method that a landlord may use to
evict a tenant under O.C.G.A. § 44-7-50 et seq. However, these arguments are irrelevant,
because to be eligible for qualified immunity the Officers must show that they had probable
cause to arrest Gray for criminal damage to property in the second degree, O.C.G.A. § 16-7-23.
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Complaint, Gray “state[d] a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6).
AFFIRMED IN PART AND REVERSED IN PART.
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