[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11112

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CAPTAIN JACK’S CRAB SHACK, INC., 

d.b.a. Captain Jack’s Shack, 

RONNIE BARTLETT, 

LEE BARTLETT, 

Plaintiffs-Appellees,

versus

K. DAVID COOKE, JR.,

District Attorney of the Macon Judicial Circuit, in 

his individual capacity, et al.,

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2 Opinion of the Court 21-11112, et al.

Defendants,

MELANIE BICKFORD, 

Investigator, City of Byron Police Department, 

Byron, Georgia, in her individual capacity, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:16-cv-02887-SCJ

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____________________

No. 21-11114

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CAPTAIN JACKS’S CRAB SHACK, INC., 

d.b.a. Captain Jack’s Shack, 

Plaintiff,

RONNIE BARTLETT, 

LEE BARTLETT, et al.,

Plaintiffs-Appellants,

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21-11112, et al. Opinion of the Court 3

versus

K. DAVID COOKE, JR., 

District Attorney of the Macon Judicial Circuit, in 

his individual capacity,

MICHAEL G. LAMBROS, 

Special Assistant District Attorney of the Macon 

Judicial Circuit, in his individual capacity,

MELANIE BICKFORD, 

Investigator, City of Byron Police Department, 

Byron, Georgia, in her individual capacity,

CHRISTINE WELCH, 

Police Officer, City of Centerville Police 

Department, Centerville, Georgia, in her individual 

capacity,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:16-cv-02887-SCJ

____________________

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4 Opinion of the Court 21-11112, et al.

____________________

No. 21-11113

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CAPTAIN JACKS’S CRAB SHACK, INC., 

d.b.a. Captain Jack’s Shack, 

RONNIE BARTLETT, 

LEE BARTLETT, 

Plaintiffs-Appellees,

versus

K. DAVID COOKE, JR.,

District Attorney of the Macon Judicial Circuit, in

his individual capacity, et al.,

Defendants,

CHRISTINE WELCH, 

Police Officer, City of Centerville Police 

Department, Centerville, Georgia, in her individual 

capacity,

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21-11112, et al. Opinion of the Court 5

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:16-cv-02887-SCJ

____________________

Before WILLIAM PRYOR, Chief Judge, LUCK, Circuit Judge, and 

MOORER,

* District Judge.

PER CURIAM:

In 2015, the Byron Police Department launched an investigation into Captain Jack’s, a seafood restaurant in Georgia. An undercover officer saw Captain Jack’s pay thousands of dollars in cash 

prizes to those who won on the restaurant’s video poker machines. 

These cash payments violated Georgia law. So the officers 

searched the property, seized the restaurant’s money, and arrested 

the owners—Ronnie and Lee Bartlett. 

The district attorney’s office brought Mr. Bartlett to trial and

a jury convicted him of several gambling crimes. The Georgia 

Court of Appeals later reversed the conviction. The Bartletts, in 

turn, sued two prosecutors and two officers that they say were 

*

The Honorable Terry F. Moorer, United States District Judge for the Southern District of Alabama, sitting by designation. 

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responsible for the prosecution, asserting twelve federal and state 

law claims.

The district court granted the prosecutors’ motions to dismiss, denied the officers’ motions for judgment on the pleadings, 

and denied the Bartletts’ motion for leave to amend their complaint. After careful review, and with the benefit of oral argument, 

we conclude that the Bartletts’ claims are barred by immunity or 

otherwise fail. We affirm the dismissal of the Bartletts’ claims 

against the prosecutors and the denial of the Bartletts’ motion to 

amend. We reverse the denial of the officers’ motions for judgment on the pleadings. 

FACTUAL BACKGROUND1 

Ronnie and Lee Bartlett, a married couple in their seventies, 

owned and operated Captain Jack’s Crab Shack, a seafood restaurant in Byron, Georgia. Captain Jack’s had a state license to use

1

“We accept the factual allegations in the complaint as true and construe them 

in the light most favorable to the plaintiff.” Luke v. Gulley, 975 F.3d 1140, 1143 

(11th Cir. 2020) (quoting Echols v. Lawton, 913 F.3d 1313, 1319 (11th Cir. 

2019)). We consider Officer Melanie Bickford’s affidavit because it was “referred to in the complaint, central to the [plaintiffs’] claim[s], and of undisputed 

authenticity.” Id. at 1144 (quoting Hi-Tech Pharms., Inc. v. HBS Int’l Corp., 

910 F.3d 1186, 1189 (11th Cir. 2018)). And we take judicial notice of the state 

court’s record in Mr. Bartlett’s criminal case (including the directed verdict 

denial, the jury’s guilty verdict, and the reversal on appeal) because those facts 

are “not subject to reasonable dispute because [they] . . . can be accurately and 

readily determined from sources whose accuracy cannot reasonably be questioned.” FED R. EVID. 201(b)(2).

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“coin operated amusement machines” at the restaurant. While 

gambling is generally illegal in Georgia, the state legislature has created an exception for these closely regulated games. See GA.CODE 

ANN. § 16-12-35. 

A coin operated amusement machine is any “machine . . . 

used by the public to provide amusement or entertainment whose 

operation requires the payment of or the insertion of [money or 

tokens] and the result of whose operation depends in whole or in 

part upon the skill of the player.” GA. CODE ANN. § 50-27-

70(b)(2)(A). These games include, for example, pinball machines, 

video games, and claw machines: games that require at least some

skill. Id. Georgia law allows players who win to redeem “noncash” 

prizes worth up to five dollars for a single play. § 16-12-35(d)(2). 

It’s a “misdemeanor of a high and aggravated nature” for any person owning a coin operated amusement machine to “give[] to any 

other person money as a reward for the successful play or winning 

of any such amusement game.” § 16-12-35(g). 

On May 1, 2015, Officer Melanie Bickford with the Byron 

Police Department signed an affidavit in support of search and arrest warrants for Captain Jack’s and the Bartletts. In her affidavit, 

Officer Bickford averred that an undercover officer, Christine 

Welch, went to Captain Jack’s five times. While Officer Welch was 

there, she played the games. And, during those visits, Officer 

Welch was paid $330 in cash out of Captain Jack’s register for winning on “video poker” machines. Officer Welch also saw a woman 

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win $2,500 and watched Mr. Bartlett remove money from the 

games to gather enough cash to pay the woman. 

On May 5, 2015, the Byron Police Department executed the 

warrants it secured based on Officer Bickford’s affidavit. While executing the warrants, the officers “confiscated [Captain Jack’s 

games] and cash and other personal property.” They also arrested 

the Bartletts. On that same day, District Attorney David Cooke 

and Special Assistant District Attorney Michael Lambros—both 

with the district attorney’s office for the Macon Judicial Circuit—

filed a civil case against the Bartletts in state court under Georgia’s 

Racketeer Influenced and Corrupt Organizations Act. The state 

court entered a temporary restraining order “freezing [the Bartletts’] accounts and assets.” 

The Bartletts allege that this “illegal raid” was “secured by 

. . . fabricated evidence.” The search, arrest, and civil racketeering

case, they say, hinged on four flawed allegations: that the Bartletts

were (1) “making cash payments to players of the illegal gambling 

machines,” (2) “operating illegal gambling machines” by using machines that “allowed a ‘win’ without any skill or assistance of the 

player,” (3) “falsely report[ing] winnings to the Georgia Department of Revenue,” and (4) “engag[ing] in money laundering.” The 

defendants “knew they had no evidence of any of [these] acts,” the 

Bartletts claim. For example, there was no evidence that the Bartletts personally made any cash payments. 

According to the Bartletts, Officer Bickford and Officer 

Welch’s “perjured testimony led to the raid on Captain Jack’s, the 

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arrests of the Bartletts, and the filing of the civil [racketeering] action.” And the officers did “[a]ll of this”—i.e., they conducted the 

search and arrest based on “fabricated evidence” in the affidavits—

“at the insistence of . . . Lambros and Cooke.” District Attorney 

Cooke and Special Assistant District Attorney Lambros also “directed” the “illegal raid” on Captain Jack’s. 

The Bartletts claim that this wasn’t the first time that District

Attorney Cooke and Special Assistant District Attorney Lambros 

pursued unsupported actions against businessowners. The prosecutors allegedly had “a pattern and practice of . . . seiz[ing] all the 

assets of locations operating bona fide coin operated amusement 

machines” and then “extort[ing] a resolution with the location 

owners that allow[ed] [the prosecutors] to keep a portion of the 

money improperly seized, while threatening location owners with 

criminal prosecution.” And District Attorney Cooke allegedly 

“create[d] an unaccountable fund with the revenues generated 

from these improper seizures, minus the monies paid to . . . Lambros, and then spen[t] the[] [funds] . . . on items he believe[d] 

[would] garner him favor with his constituency.” 

That, the Bartletts say, is what happened here. In August 

2016, more than a year after the prosecutors filed the civil racketeering case, they dropped the case. But by that time, the Bartletts 

had hired two experts who both determined that Captain Jack’s 

games were legal because they required skill. And when the Bartletts sent a notice of their intent to sue, District Attorney Cooke 

told the Bartletts that “he had not been planning to prosecute” 

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them but that “receiving the [n]otice had caused him to reconsider 

and prioritize their case for prosecution.” Seventeen months after 

their initial arrests, the Bartletts were indicted for several gambling 

crimes. They both were arrested and placed in jail overnight before they posted bond. 

In February 2018, Mr. Bartlett’s criminal case finally went to 

trial.2 Once the government finished presenting its case, Mr. Bartlett moved for a directed verdict, arguing that the games at Captain 

Jack’s fell outside the gambling laws. The government disagreed, 

contending: (1) “[o]nce you start paying out cash you have turned 

that [otherwise-exempt game] into a gambling device”; and (2) the 

games were gambling devices because Officer Welch had testified 

that there were “times where [she] w[o]n” without giving the 

games a “nudge” (i.e., she won with no skill). The trial court denied Mr. Bartlett’s motion for a directed verdict. And the jury convicted Mr. Bartlett on three counts: commercial gambling, possessing gambling equipment, and keeping a gambling place. The

jury acquitted Mr. Bartlett on several criminal racketeering

charges. 

Mr. Bartlett appealed, and the Georgia Court of Appeals reversed, finding that “the evidence was insufficient as a matter of 

law to support his convictions.” Bartlett v. State, 829 S.E.2d 187, 

2 Mrs. Bartlett was never tried, and the charges against her were dismissed.

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188 (Ga. Ct. App. 2019). The state court of appeals explained the 

government’s theory:

The [s]tate’s theory at trial was that the [games] in 

Captain Jack’s were effectively converted into illegal 

gambling devices for two reasons. First, the [s]tate 

relied upon [Officer] Welch’s testimony that she was 

able to complete a winning spin without having to 

nudge the wheels, thus removing the element of 

player skill required of a bona fide [coin operated 

amusement machine]. [Second], the [s]tate asserted 

that because cash payments were given to patrons in 

exchange for the certificates earned from the [games], 

the [games] should be treated as illegal gambling devices.

Id. at 191–92.

The state court of appeals rejected both reasons. Id. at 192. 

As to the first, it found that there was no evidence that Mr. Bartlett 

knew that the games allowed a player to win without skill. Id. 

“[A]t most,” the court said, the evidence “supported that the 

[games] malfunctioned in some way to allow [Officer] Welch to 

win without ‘nudging’ the wheels.” Id. As to the second, the state 

court of appeals rejected the government’s contention that the cash 

payments could transform the games into illegal gambling devices. 

Id. at 192–93. Instead, section 16-12-35 “states that the misuse of a 

[coin operated amusement machine] by paying cash for winning 

plays constitutes a misdemeanor.” Id. at 192. “Nowhere in [section] 16-12-35 does the General Assembly provide that a cash 

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payout would convert an otherwise legal [game] into an illegal 

‘gambling device’ that would have subjected Bartlett to prosecution under” the criminal provisions he was charged under. Id. at 

192–93. For these reasons, the state court of appeals reversed Mr. 

Bartlett’s conviction. Id. at 193.

PROCEDURAL HISTORY 

The Bartletts filed this case six years ago, on August 9, 2016,

against District Attorney Cooke, Special Assistant District Attorney 

Lambros, Officer Bickford, and Officer Welch.3 One month after 

the case was filed, the defendants moved to stay it, arguing that the 

district court should abstain from interfering with the state criminal proceedings. The Bartletts, in turn, filed a motion for a temporary restraining order, seeking to enjoin the state criminal proceedings. The Bartletts also filed an amended complaint. In April 2017, 

the district court ruled on the motions, granting a stay and denying 

the temporary restraining order and preliminary injunction. 

Months later, the Bartletts moved to reopen the case and to 

file a second amended complaint. The district court granted that 

motion. It noted that “[m]ore than six months ha[d] passed since 

[the district court stayed the case], and nearly two-and-a-half years 

ha[d] passed since the Bartletts were first arrested,” and yet there 

was “no indication that the criminal prosecutions ha[d] concluded 

3

Captain Jack’s was also a plaintiff. The district court dismissed Captain Jack’s 

from this case for lack of standing, and the business didn’t appeal that ruling. 

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or [were] anywhere near concluding.” The district court also 

found “good cause for amending.” 

On November 1, 2017, the Bartletts filed their operative second amended complaint. They brought twelve counts: (1) a due 

process claim under 42 U.S.C. § 1983; (2) an unlawful search claim

under § 1983; (3) a speech retaliation claim under § 1983 against the 

prosecutors; (4) a failure to intervene claim under § 1983 against 

the prosecutors; (5) a conspiracy claim under 42 U.S.C. § 1985; (6) a 

claim for attorneys’ fees under 42 U.S.C. § 1988; (7) an intentional 

infliction of emotional distress claim; (8) a conversion claim; (9) a 

punitive damages claim; (10) an injunctive relief claim against the 

prosecutors; (11) an abusive litigation claim against the prosecutors; and (12) a claim for attorneys’ fees under GA.CODE ANN. § 13-

6-11.

As the parallel criminal case approached trial, the district 

court stayed the case again. It lifted the stay more than two years 

later, on May 15, 2020. After that, the defendants filed separate dispositive motions. District Attorney Cooke and Special Assistant 

District Attorney Lambros each moved to dismiss. Officers Bickford and Welch each moved for judgment on the pleadings. In response, the Bartletts moved to file a third amended complaint. The 

district court entered five separate orders disposing of these five 

separate motions. These are the five orders on appeal.

The district court granted the prosecutors’ motions to dismiss for three reasons: First, the Bartletts offered no more than 

“conclusory” and “speculative” allegations that the prosecutors 

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“fabricated” evidence and “knew” they were pursuing false 

charges. Second, the prosecutors were absolutely immune for 

their role in “initiating and pursuing criminal prosecution.” And 

third, the prosecutors were entitled to qualified immunity because 

it was not clearly established that “the underlying cases against [the 

Bartletts] would not succeed.” 

The district court denied the officers’ motions for judgment 

on the pleadings. As to the federal claims, the district court concluded that the officers weren’t entitled to qualified immunity because they “knew that [the Bartletts’] machines were not illegal and 

yet lied about that fact . . . to help achieve probable cause.” As to 

the state law claims, the district court concluded that the officers 

weren’t entitled to official immunity because the Bartletts adequately alleged that the officers acted “malicious[ly] and without 

probable cause.” 

The district court denied the Bartletts’ motion to amend. 

The Bartletts moved to add two claims, both under § 1983: one for 

malicious prosecution and one for excessive fines. First, the district 

court found that the Bartletts’ attempt to add an excessive fines 

claim was “unduly delayed.” Second, the district court found that 

both claims would fail and so the amendment was futile. As to the 

malicious prosecution claim, the district court concluded that the

prosecutors enjoyed absolute immunity because their actions were 

“intimately associated with the judicial phase of the criminal process.” And the officers were entitled to qualified immunity because 

“there was probable cause” as shown by the jury’s guilty verdict 

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and the lack of plausible allegations that they “concocted false evidence.” As to the excessive fines claim, the district court concluded 

that all of the defendants were entitled to qualified immunity because the Supreme Court didn’t hold that the excessive fines clause 

applied to state actors until after the seizures in 2015. 

The officers filed a notice of appeal challenging the district 

court’s order denying them qualified immunity. The Bartletts filed 

a notice of appeal challenging the district court’s orders (1) dismissing their claims against the prosecutors and (2) denying leave to 

amend. At oral argument, the Bartletts conceded that their due 

process, speech retaliation, and conspiracy claims (counts one, 

three, and five) are barred by immunity or fail to state a claim. As 

a result, we will not consider those claims here. See RES-GA Cobblestone, LLC v. Blake Constr. & Dev., LLC, 718 F.3d 1308, 1313 

n.6 (11th Cir. 2013) (“[A] party is bound by unambiguous concessions or waivers made at oral argument[.]”). 

STANDARDS OF REVIEW 

We review de novo the district court’s ruling on a motion 

to dismiss and a motion for judgment on the pleadings. Davis v. 

Carter, 555 F.3d 979, 981 (11th Cir. 2009) (motion to dismiss); Mergens v. Dreyfoos, 166 F.3d 1114, 1116 (11th Cir. 1999) (motion for

judgment on the pleadings). We also review de novo a district 

court’s decision on “qualified or absolute immunity.” Scarbrough 

v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001).

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“A motion for judgment on the pleadings is governed by the 

same standard as a motion to dismiss” for failure to state a claim. 

Samara v. Taylor, 38 F.4th 141, 152 (11th Cir. 2022) (quoting Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1350 (11th Cir. 

2018)). The “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 (2009) (quotation omitted).

We generally review a district court’s order on a motion to 

amend for abuse of discretion. Williams v. Bd. of Regents of Univ. 

Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir. 2007). But we review 

questions of law raised by a motion to amend—like whether an 

amendment is futile—de novo. Fla. Evergreen Foliage v. E.I. 

DuPont De Nemours & Co., 470 F.3d 1036, 1040 (11th Cir. 2006) 

(“[W]hen the district court denies the plaintiff leave to amend due 

to futility, we review the denial de novo[.]” (quoting Freeman v. 

First Union Nat’l, 329 F.3d 1231, 1234 (11th Circ. 2003)). 

DISCUSSION 

Our analysis proceeds in three steps. First, we review the

federal claims for unlawful search and failure to intervene. Second, 

we turn to the state law claims for intentional infliction of emotion 

distress, conversion, and abusive litigation. And third, we discuss

the motion to amend. As we’ll explain, the Bartletts’ claims are 

barred by immunity and fail to state plausible claims for relief.

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Unlawful Search (Count Two)

The Bartletts asserted an unlawful search claim against the 

defendants. This claim fails for two reasons. First, the prosecutors 

are entitled to absolute immunity because the Bartletts failed to 

plausibly allege that the prosecutors acted outside the judicial process. Second, the defendants are entitled to qualified immunity because the search warrant affidavit supplied at least arguable probable cause for the search. 

Absolute Immunity

While “[s]ection 1983, on its face[,] admits of no defense of 

official immunity,” the Supreme Court has held that certain common law “immunities were so well established in 1871, when 

§ 1983 was enacted, that ‘we presume that Congress would have 

specifically so provided had it wished to abolish’ them.” Buckley 

v. Fitzsimmons, 509 U.S. 259, 268 (1993) (quoting Pierson v. Ray, 

386 U.S. 547, 554–55 (1967)). This presumption reflects the principle that “Congress legislates against a background of common-law 

adjudicatory principles, and it expects those principles to apply except when a statutory purpose to the contrary is evident.” Minerva 

Surgical, Inc. v. Hologic, Inc., 141 S. Ct. 2298, 2307 (2021) (cleaned 

up). So, for the most part, the immunities that existed at common 

law carry over to § 1983. See Rehberg v. Paulk, 566 U.S. 356, 364 

(2012) (noting that immunity is “tied to the common law[]” but 

that the Court has not “mechanically duplicated the precise scope 

of the absolute immunity that the common law provided”).

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There are two types of immunities: absolute and qualified. 

Buckley, 509 U.S. at 268–69. “In determining whether particular 

actions of government officials fit within a common-law tradition 

of absolute immunity, or only the more general standard of qualified immunity, we have applied a functional approach . . . .” Id. at 

269 (quotation omitted). As relevant here, the Supreme Court has 

applied this functional approach to prosecutors, holding that prosecutors are entitled to absolute immunity for conduct that is “intimately associated with the judicial phase of the criminal process.” 

Imbler v. Pachtman, 424 U.S. 409, 430 (1976). On the other hand, 

absolute immunity may not apply “when a prosecutor is not acting 

as an officer of the court, but is instead engaged in other tasks, say, 

investigative or administrative tasks.” Van de Kamp v. Goldstein, 

555 U.S. 335, 342 (2009) (quotation omitted).

Over time, the Supreme Court has helped define the border

between the judicial phase of the criminal process and investigative 

tasks. It’s held, for example, that absolute immunity applies to a 

prosecutor’s actions “in initiating a prosecution and in presenting 

the [s]tate’s case.” Imbler, 424 U.S. at 431. So, in Imbler, the prosecutor was absolutely immune where he allowed a witness to give 

false testimony at trial and introduced into evidence a sketch altered to resemble the defendant. Id. at 416. Prosecutors also enjoy 

absolute immunity for their courtroom advocacy—like “appearing 

before a judge and presenting evidence in support of a motion for 

a search warrant.” Burns v. Reed, 500 U.S. 478, 491 (1991); see also 

Hart v. Hodges, 587 F.3d 1288, 1295 (11th Cir. 2009) (“Prosecutors 

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are immune for appearances before a court and conduct in the 

courtroom, including examining witnesses and presenting evidence in support of a search warrant during a probable cause hearing.”). “A prosecutor,” in short, “enjoys absolute immunity from 

allegations stemming from the prosecutor’s function as advocate.” 

Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999).

But “prosecutorial immunity does not apply when the prosecutor acts outside the . . . activities ‘intimately associated’ with the 

judicial process.” Hart, 587 F.3d at 1296. There was no absolute 

immunity, for example, when a prosecutor advised officers (during 

their investigation) that “statements that [the suspect] had made 

while under hypnosis . . . probably [supplied] probable cause to arrest [the suspect].” Burns, 500 U.S. at 481–82, 496 (quotation omitted). The Court reasoned that “advising the police in the investigative phase of a criminal case” was not “so intimately associated 

with the judicial phase of the criminal process” that it “qualifie[d] 

for absolute immunity.” Id. at 493 (quotation omitted). Nor was 

there prosecutorial immunity where a prosecutor “fabricated false 

evidence” by “shopp[ing] for experts until they found one who 

would provide the opinion they sought” linking a bootprint from a 

murder scene to a suspect. Buckley, 509 U.S. at 262, 272–74. That 

prosecutor was acting more as “a detective or police officer,” and 

there was no “authority that support[ed] an argument that a prosecutor’s fabrication of false evidence during the preliminary investigation of an unsolved crime was immune from liability at common law.” Id. at 273–75. And, where a prosecutor personally 

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certified in a sworn affidavit in support of an arrest warrant that 

there was probable cause for the arrest, “the only function that she 

perform[ed] in giving sworn testimony [was] that of a witness.” Kalina v. Fletcher, 522 U.S. 118, 121, 131 (1997). Absolute immunity 

did not attach. See id. at 131.

In our case, the Bartletts have failed to plausibly allege that 

the prosecutors acted outside the judicial phase of the criminal process. The Bartletts mainly allege that District Attorney Cooke and 

Special Assistant District Attorney Lambros “caused searches of 

[their] home [and] business” by “securing judicial approval” of a 

search warrant “based on . . . false statements” in a “warrant affidavit.” The problem is that “[t]he prosecutor[s’] actions at issue 

here—appearing before a judge and presenting evidence in support 

of a motion for a search warrant—clearly involve [their] role as advocate[s] for the [s]tate, rather than [their] role as administrator[s]

or investigative officer[s].” Burns, 500 U.S. at 491 (quotation omitted); see also Kalina, 522 U.S. at 130 (stating that a prosecutor is 

absolutely immune for his “presentation of . . . [a] motion [for an 

arrest warrant] to the court”).

Looking to plead their way around this, the Bartletts pointed

to certain “investigative” conduct in their complaint. The Bartletts

alleged, for example, that the prosecutors “directed an illegal raid,” 

“insist[ed]” that the officers include the “fabricated evidence” in the 

warrant affidavit, and acted in their “investigative capacities.” But 

the Bartletts failed to include “enough facts” to “plausibl[y]” allege 

that the prosecutors directed the search, fabricated evidence, or 

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acted in an investigative capacity. Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 557, 570 (2007). For example, they don’t tell us how the 

prosecutors “directed” any search, what the prosecutors did to “insist[]” on any false statements, or how they were acting in their “investigative capacities.” After Twombly and Iqbal, we do not credit 

“[c]onclusory allegations, unwarranted deductions of facts[,] or legal conclusions masquerading as facts.” Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004) (quotation omitted).

Against all this, the Bartletts raise three arguments—all unpersuasive. First, the Bartletts argue that the prosecutors aren’t entitled to absolute immunity for directing a search, advising the police in their investigation, or fabricating evidence. But the Bartletts 

failed to offer facts to support a reasonable inference that the prosecutors did any of those things. Indeed, the Bartletts concede that 

they “do not yet have additional evidence directly showing [that 

the prosecutors] guided and advised [the officers] in the investigation of Captain Jack’s and the drafting of the false affidavits.” And 

they claim that they might have unearthed this evidence had the 

prosecutors complied with their discovery obligations in the civil 

racketeering case. But the Bartletts cite no authority for the proposition that the need for discovery excuses a plaintiff’s failure to 

plead a plausible claim. Nor could they. See United States v. Cuya, 

964 F.3d 969, 973 (11th Cir. 2020) (“In fact, in civil cases generally, 

a party is not entitled to discovery before an action is brought—

indeed, he may not seek discovery until after he has not only filed 

a complaint, but a well-pleaded one.”). 

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22 Opinion of the Court 21-11112, et al.

Second, the Bartletts contend that their unlawful search 

claim looks a lot like the one in Rieves v. Town of Smyrna, 959 F.3d 

678 (6th Cir. 2020), where the Sixth Circuit held that the district 

court properly denied prosecutorial immunity. But in that case the 

plaintiffs had offered “very specific factual allegations that [the 

prosecutors] acted outside their role as judicial advocates during 

the investigative phase” of the prosecution into stores selling cannabidiol-infused candy products. Id. at 690. For example, the

Rieves plaintiffs described—in detail—a series of calls and meetings 

in which the prosecutors repeatedly “assured the officers [that cannabidiol] was an illegal Schedule VI product and that it needed to 

be prosecuted.” Id. at 686 (cleaned up). The Rieves plaintiffs also 

pointed to the prosecutors’ substantial investigative role in that 

case, alleging that the prosecutors told an officer to “get a certain 

detective ‘more involved’ in the investigation,” directed the officers to “speed up the investigation,” and “recommended padlocking 

the businesses.” Id. at 686–88. There are no similar allegations

about legal advice or investigative conduct here. While the Bartletts claim in their brief that the prosecutors offered “legal advice” 

to the officers during the investigation, the complaint said nothing 

about legal advice. And while the Bartletts did allege in their complaint that the prosecutors “directed an illegal raid,” they offered 

no factual content to support that allegation. 

Third, the Bartletts—relying on Marshall v. Jerrico, Inc., 446 

U.S. 238 (1980)—argue that the prosecutors are not entitled to absolute immunity because their decisions were tainted by improper 

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21-11112, et al. Opinion of the Court 23

personal and financial motives. See id. at 249–50 (observing that a 

“scheme injecting a personal interest, financial or otherwise, into 

the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions”). But Marshall wasn’t an immunity 

case. While a prosecutor’s motives may be relevant to whether a 

civil rights plaintiff has stated a claim, they are not relevant to determining whether absolute immunity applies. As the Supreme 

Court explained in Imbler, absolute immunity hinges on the “functional nature of the [prosecutor’s] activities,” not on their personal 

motivations, and so prosecutors may be immune even when their 

actions are “malicious or dishonest.” Imbler, 424 U.S. at 427, 430; 

see also Kulwicki v. Dawson, 969 F.2d 1454, 1464 (3d Cir. 1992)

(“Consideration of personal motives is directly at odds with the Supreme Court’s simple functional analysis of prosecutorial immunity[.]”); Brummett v. Camble, 946 F.2d 1178, 1181 (5th Cir. 1991) 

(holding that prosecutors are entitled to absolute immunity even if

they have a “personal interest in filing charges” because “absolute 

immunity is justified and defined by the governmental functions it 

protects and serves, not by the motives with which a particular officer performs those functions”). 

In sum: District Attorney Cooke and Special Assistant District Attorney Lambros are entitled to absolute immunity for presenting evidence to a judicial officer to obtain a search warrant.

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24 Opinion of the Court 21-11112, et al.

Qualified Immunity

In any event, all the defendants are entitled to qualified immunity for the Bartletts’ unlawful search claim. “Qualified immunity offers complete protection for government officials sued in their 

individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 

(11th Cir. 2002) (quotation omitted). “The purpose of this immunity is to allow government officials to carry out their discretionary 

duties without the fear of personal liability or harassing litigation, 

protecting from suit all but the plainly incompetent or one who is 

knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 

1188, 1194 (11th Cir. 2002) (internal citation and quotation omitted).

To qualify for the immunity, an official “must first prove 

that he was acting within the scope of his discretionary authority 

when the allegedly wrongful acts occurred.” Mikko v. City of Atlanta, 857 F.3d 1136, 1143–44 (11th Cir. 2017) (quotation omitted). 

Here, there is no dispute that the defendants were acting within 

their discretionary authority when they investigated and prosecuted the Bartletts.

Where, as here, the defendants were acting within their discretionary authority, “the burden shifts to the plaintiff to show that 

qualified immunity is not appropriate.” Lee, 284 F.3d at 1194. “To 

meet [that] burden, a plaintiff must show both (1) that [he] suffered 

a violation of a constitutional right and (2) that the right [he] claims 

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21-11112, et al. Opinion of the Court 25

was clearly established at the time of the alleged misconduct.” 

Huebner v. Bradshaw, 935 F.3d 1183, 1187 (11th Cir. 2019) (quotation omitted). The federal courts are “permitted to exercise their 

sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 

555 U.S. 223, 236 (2009).

For a right to be clearly established, it must be “clear to a 

reasonable officer that his conduct was unlawful in the situation he 

confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). We’ve identified three ways for the law to be clearly established:

First, the plaintiffs may show that a materially similar 

case has already been decided. Second, the plaintiffs 

can point to a broader, clearly established principle 

that should control the novel facts of the situation. Finally, the conduct involved in the case may so obviously violate the constitution that prior case law is unnecessary.

Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012) (cleaned up). 

In assessing whether the law is clearly established, we look to the 

law as it was interpreted at the time of the challenged conduct by 

the United States Supreme Court, the Eleventh Circuit, and the 

Georgia Supreme Court. See id.

Which takes us to our case—and the Bartletts’ claim that the 

prosecutors and the officers conspired to include false statements 

in the warrant affidavit. The Fourth Amendment provides that “no 

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26 Opinion of the Court 21-11112, et al.

[w]arrants shall issue, but upon probable cause, supported by 

[o]ath or affirmation.” U.S. CONST. AMEND. IV. The Supreme 

Court has held that an officer violates this provision by submitting

a warrant affidavit with falsehoods that were made “deliberate[ly]” 

or in “reckless disregard for the truth.” Franks v. Delaware, 438 

U.S. 154, 171 (1978); see also Holmes v. Kucynda, 321 F.3d 1069, 

1083 (11th Cir. 2003) (noting that an “officer may be held liable under 42 U.S.C. § 1983 for submitting an application for an arrest warrant that contains false information”).

We analyze a Franks claim in two steps. First, “we ask 

whether there was an intentional or reckless misstatement.” Paez 

v. Mulvey, 915 F.3d 1276, 1287 (11th Cir. 2019). Second, “we examine the materiality of the information by inquiring whether 

probable cause would be negated if the offending statement was 

removed.” Id. Probable cause to search exists where there is a “fair 

probability that contraband or evidence of a crime will be found in 

a particular place.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 

1251 (11th Cir. 2013) (quotation omitted). Even “arguable probable cause” is enough to show entitlement to qualified immunity. 

See Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir. 1997).

Applying the Franks framework, we must first identify all 

“deliberate falsehood[s]” and any statements made in “reckless disregard for the truth.” 438 U.S. at 171. The Bartletts alleged that 

Officer Bickford’s warrant affidavit contained four misstatements: 

(1) that the Bartletts personally made “cash payments to players of 

the illegal gambling machines,” (2) that their games were illegal 

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21-11112, et al. Opinion of the Court 27

because the games “allowed a ‘win’ without any skill,” (3) that the

Bartletts “falsely reported winnings to the Georgia Department of 

Revenue,” and (4) that the Bartletts “engaged in money laundering.” According to the Bartletts, the defendants “knew they had no 

evidence of any of [these] acts.” 

Turning to Franks’s second step, we must “examine the materiality of the information by inquiring whether probable cause 

would be negated if the offending statement was removed.” Paez, 

915 F.3d at 1287. Probable cause for any offense alleged in the 

search warrant affidavit will preclude a Franks claim. See Madiwale, 117 F.3d at 1327 (holding that an officer was entitled to qualified immunity on a Franks claim where there was probable cause 

for some, but not all, of the offenses outlined in the search warrant 

affidavit). In this case, the affidavit alleged three crimes: commercial gambling, keeping a gambling place, and making cash payments to those who win on coin operated amusement machines. 

Because there was plainly probable cause for the third offense—the cash payments—we don’t need to consider the other 

two. For this third offense, the search warrant affidavit averred:

“[B]ona fide” coin operated amusement machines 

[that] reward the player with a cash payout . . . violat[e] . . . the redemption paragraph of [section] 16-12-

35(d)(l)(B) that states, “rewards . . . exclusively with 

merchandise [that is] limited to non-cash merchandise, prizes, toys, gift certificates, or novelties, each of 

which has a wholesale value of not more than [five 

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28 Opinion of the Court 21-11112, et al.

dollars] received for a single play of the game or device.”

That same statute makes it a “misdemeanor of a high and aggravated nature” for “[a]ny person owning or possessing an amusement game . . . or any person employed by or acting on behalf of 

any such person [to] give[] to any other person money as a reward 

for the successful play or winning of any such amusement game.” 

GA. CODE ANN. § 16-12-35(g).

The affidavit in this case—even taking away the alleged misstatements—says enough to provide probable cause for the search. 

The affidavit alleged that Officer Welch went to Captain Jack’s five 

times and that Captain Jack’s paid Officer Welch $330 in cash for 

winning on video poker machines. The affidavit also reported that 

Officer Welch saw a woman win $2,500 and watched Mr. Bartlett 

personally remove money from the machines to gather enough 

cash to pay the woman. The Bartletts—without ever denying that 

the employees at Captain Jack’s paid out cash prizes—alleged that 

neither of the Bartletts personally made any cash payments.

4

 Removing that allegation, we’re still left with a series of cash payments out of the register at Captain Jack’s to customers who won 

4

This reading of the complaint—that the Bartletts only deny that they personally paid the cash—follows from the Bartletts’ brief, in which they repeatedly 

say only that neither “Mr. nor Mrs. Bartlett ever made any cash payout.” It 

also follows from the Bartletts’ acknowledgement at oral argument that “there 

were cash payouts at the store.” 

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21-11112, et al. Opinion of the Court 29

on the restaurant’s video poker machines. That was enough to 

supply arguable probable cause to search Captain Jack’s for evidence of the cash payments. See Madiwale, 117 F.3d at 1327 (holding that the defendant was “entitled to qualified immunity as to the 

search warrant claims” because the facts were “adequate to establish arguable probable cause” as to some offenses in the affidavit).

The Bartletts’ only contention is that there is no evidence 

that they personally paid out any cash for gambling. But the test 

for probable cause for a search warrant is not whether a particular 

individual committed any crime. Instead, it’s whether there is a 

“fair probability that contraband or evidence of a crime will be 

found in a particular place.” Feliciano, 707 F.3d at 1251 (quoting 

United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en 

banc)). And, so, even if the officers never witnessed the Bartletts 

themselves pay cash, that doesn’t mean there wasn’t probable 

cause to believe that there was evidence of illegal payouts at Captain Jack’s. Instead, Officer Welch’s undisputed testimony that she 

witnessed illegal cash payments at Captain Jack’s—the Bartletts’ 

business—created a “fair probability” that there would be evidence 

of the offense in the Bartletts’ “home, business, files, records, electronic devices, and . . . coin operated amusement machines.” Because there was probable cause, even without the alleged misstatements, there was no violation of the Bartletts’ Fourth Amendment 

rights under Franks. 

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30 Opinion of the Court 21-11112, et al.

Failure to Intervene (Count Four)

The Bartletts brought a failure to intervene claim against the 

prosecutors, alleging that they are liable because they “did nothing 

to prevent” the officers from investigating the Bartletts, drafting 

the false affidavit, or conducting the search. We affirm the district 

court’s dismissal of the Bartletts’ failure to intervene claim for two 

reasons.

First, the Bartletts, in their opening brief, failed to challenge 

the district court’s dismissal of this claim. Instead, the Bartletts addressed the claim for the first time in reply. “Those arguments 

[came] too late.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 

678, 683 (11th Cir. 2014); see also United States v. Campbell, 26 

F.4th 860, 873 (11th Cir. 2022) (en banc) (noting that the “failure to 

raise an issue in an initial brief on direct appeal should be treated as 

a forfeiture of the issue, and [that] the issue may be raised by the 

court sua sponte [only] in extraordinary circumstances”).5

Second, the Bartletts’ failure to intervene claim fails because

the prosecutors are shielded by qualified immunity. To overcome 

qualified immunity, a plaintiff must show that the right he relies on 

“was clearly established at the time of the alleged misconduct.” 

Huebner, 935 F.3d at 1187 (quotation omitted). But, here, the Bartletts have pointed to no clearly established law holding that a prosecutor violates the Constitution by failing to intervene in a police 

5 No extraordinary circumstances are presented here. 

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21-11112, et al. Opinion of the Court 31

officer’s investigation. In fact, we’ve held that prosecutors were

entitled to qualified immunity in a case that’s almost identical to 

this one, where the claim was that the prosecutor was “aware that 

others were tampering with evidence and t[ook] no action to stop 

them.” Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1281 (11th 

Cir. 2002). We explained that there was no clearly established law 

requiring a prosecutor to stop an officer from fabricating evidence:

[The plaintiff] does not cite any decisions, and we are 

not aware of any, clearly establishing that a prosecutor’s mere awareness of (as opposed to participation 

in) evidence fabrication or tampering violates the federal rights of a criminal defendant. To the contrary, 

in an analogous context, this [c]ourt has held that a 

police officer did not violate clearly established law 

merely by failing to act in the face of knowledge that 

another officer had fabricated a confession. Jones, 174 

F.3d at 1286. Therefore, [the prosecutor] is entitled 

to qualified immunity for the actions he personally 

. . . failed to take while in the investigator’s role.

Id. Nothing has changed since Rowe. There’s no law that clearly 

established that the prosecutors had to interfere in the officers’ investigation.

To this point, the Bartletts (in their reply) cite some of our

decisions on supervisory liability, which hold that a supervisory officer may be liable for a subordinate’s actions. See, e.g., Keating v. 

City of Miami, 598 F.3d 753, 765 (11th Cir. 2010) (“A failure to stop 

claim under a theory of supervisory liability only requires that the 

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32 Opinion of the Court 21-11112, et al.

supervisor (1) have the ability to prevent or discontinue a known 

constitutional violation by exercising his or her authority over the 

subordinate who commits the constitutional violation, and (2) subsequently fails to exercise that authority to stop it.”). But supervisory liability does not help the Bartletts because District Attorney 

Cooke and Special Assistant District Attorney Lambros “w[ere] not 

[the officers’] supervisor[s] or even in [the officers’] chain of command.” See Brown v. City of Huntsville, 608 F.3d 724, 737 (11th 

Cir. 2010). Since District Attorney Cooke and Special Assistant District Attorney Lambros were not the officers’ supervisors, they cannot be held liable as the officers’ supervisors.

In short, the Bartletts’ failure to intervene claim fails because 

the Bartletts have abandoned the claim and because the prosecutors are entitled to qualified immunity.

Intentional Infliction of Emotional Distress (Count Seven)

That takes us to the Bartletts’ state law claims, starting with 

intentional infliction of emotional distress.6

 The Bartletts alleged 

that the defendants are liable for intentional infliction of emotional 

distress because they “orchestrate[d] . . . illegal arrests of the Bartletts and seizures of [their] property . . . based on knowingly false 

charges.” This claim fails for two reasons. First, the prosecutors 

are entitled to prosecutorial immunity for obtaining search and 

6 The Bartletts are no longer pursuing their state law claims against District 

Attorney Cooke, having explicitly waived them below and having failed to 

address them on appeal. 

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21-11112, et al. Opinion of the Court 33

arrest warrants. Second, the defendants had probable cause to 

search and arrest the Bartletts—and so there was nothing “outrageous” about the defendants’ conduct.

Absolute Immunity

 Under Georgia law, a prosecutor is entitled to absolute immunity “provided that his acts are within the scope of his jurisdiction.” Holsey v. Hind, 377 S.E.2d 200, 201 (Ga. Ct. App. 1988) (quotation and emphasis omitted); see also GA.CONST. art. VI, § 8, ¶ I(e)

(“District attorneys shall enjoy immunity from private suit for actions arising from the performance of their duties.”). But “[n]ot all 

actions undertaken by the [prosecutor] in carrying out the functions of his office are considered within the scope of his jurisdiction 

as the prosecuting officer of the court.” Holsey, 377 S.E.2d at 201

(quotation omitted). Instead, we must ask whether the “act or 

omission is intimately associated with the judicial phase of the 

criminal process.” Id. (quotation omitted); see also Robbins v. Lanier, 402 S.E.2d 342, 344 (Ga. Ct. App. 1991) (affording prosecutorial immunity because “a prosecutor’s decision to file formal criminal charges against an individual is an act intimately associated 

with the judicial phase of the criminal process”).

 The Bartletts alleged that the prosecutors “conspired to orchestrate the illegal arrests of the Bartletts and seizures of [their] 

property.” But the only facts the Bartletts have offered to support 

their intentional infliction of emotional distress claim involve the 

prosecutors “secur[ing] warrants and injunctions.” Those actions—moving for warrants and injunctions—are “intimately 

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34 Opinion of the Court 21-11112, et al.

associated with the judicial phase of the [litigative] process.” Robbins, 402 S.E.2d at 344; see Kalina, 522 U.S. at 129 (noting that it 

was “quite clear that [the prosecutor’s] activities in . . . filing . . . [a] 

motion for an arrest warrant” were “protected by absolute immunity”). And the Bartletts’ conclusory allegation that the prosecutors 

“conspired” to secure the warrants isn’t enough. Cf. Rowe, 279 

F.3d at 1282 (“It would be cold comfort for a prosecutor to know 

that he is absolutely immune from direct liability for actions taken 

as prosecutor, if those same actions could be used to prove him 

liable on a conspiracy theory involving conduct for which he was 

not immune.”). 

The Bartletts now assert that the prosecutors “guided and 

advised [the officers] in their investigation of Captain Jack’s and the 

Bartletts, and that [they] knew the falsity of the statements as to 

probable cause in the warrant affidavits [they] assisted in drafting.” 

But the Bartletts never alleged in their complaint that the prosecutors “guided and advised” the officers during the investigation. Nor 

did they plausibly allege that the prosecutors “assisted in drafting” 

the affidavit. Thus, the prosecutors are shielded by state absolute 

immunity on the intentional infliction of emotional distress claim.

Probable Cause

Under Georgia law, “[o]ne who by extreme and outrageous 

conduct intentionally or recklessly causes severe emotional distress 

to another is subject to liability for such emotional distress.” Yarbray v. S. Bell Tel. & Tel. Co., 409 S.E.2d 835, 837 (Ga. 1991) (quoting Restatement (Second) of Torts § 46(1) (Am. L. Inst. 1965)). To 

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21-11112, et al. Opinion of the Court 35

state a claim for intentional infliction of emotional distress, “[t]he 

conduct complained of must [be] extreme and outrageous.” Id. 

(quoting Restatement (Second) of Torts § 46(1) cmt. d).

Georgia courts have held that, where an intentional infliction of emotional distress claim is based on an unlawful search or 

arrest, probable cause will usually negate any possibility that the 

conduct was outrageous—thus precluding the claim. See, e.g.,

Desmond v. Troncalli Mitsubishi, 532 S.E.2d 463, 468 (Ga. Ct. App. 

2000) (“Because a magistrate found that [the defendant] had probable cause to prosecute [the plaintiff], the filing of charges against 

[the plaintiff] cannot serve as the basis for his claim.”); Biven Software, Inc. v. Newman, 473 S.E.2d 527, 530 (Ga. Ct. App. 1996) (“Because [the defendant] had probable cause, its actions in filing the 

charges were not outrageous.”). 

Probable cause is conclusively established under Georgia 

law where a trial court denies the criminal defendant’s motion for 

a directed verdict or where a jury convicts the defendant—at least 

absent any allegation of fraud, perjury, or subornation. See Monroe v. Sigler, 353 S.E.2d 23, 25 (Ga. 1987); see also Akins v. Warren, 

375 S.E.2d 605, 606 (Ga. 1989) (“[P]robable cause is established 

when a trial judge denies a motion for directed verdict of acquittal 

in a criminal prosecution after hearing the state’s evidence. However, this can be overcome by proving the order denying the motion was procured by use of fraud or corruption.”); Hartshorne v. 

Smith, 30 S.E. 666, 667 (Ga. 1898) (“[T]he verdict of a jury finding 

the fact that the defendant in the criminal case was guilty of the 

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36 Opinion of the Court 21-11112, et al.

offense with which he stood charged is conclusive on the question 

of probable cause . . . , unless it should appear that the conviction 

was procured by fraud, perjury, or subornation[.]”). 

Here, the defendants had probable cause for the search and 

arrest because the trial court denied Mr. Bartlett’s motion for a directed verdict and because the jury later convicted him. And the 

Bartletts failed to allege any fraud, perjury, or subornation at the 

trial. Although the Bartletts claim that Officer Bickford’s affidavit 

was false, they never claim that any false evidence made its way 

into trial. Indeed, the Bartletts alleged nothing about the criminal 

trial. Accordingly, the Bartletts’ intentional infliction of emotional 

distress claim must be dismissed.

The Bartletts raise four arguments in response. First, the 

Bartletts contend that the directed verdict denial and the conviction 

do not conclusively show probable cause because Mr. Bartlett’s 

conviction was “unanimously, directly, and wholly reversed as a 

matter of law on appeal.” But Georgia law is clear that probable 

cause is conclusively established even if the guilty verdict is later 

“set aside.” Hartshorne, 30 S.E. at 667; see also Ga. Loan & Tr. Co. 

v. Johnston, 43 S.E. 27, 28 (Ga. 1902) (“The general rule is that, if 

there be a judgment of conviction in the criminal prosecution, . . . 

such judgment, although subsequently reversed by an appellate tribunal, is conclusive evidence of probable cause[.]”).

Second, the Bartletts argue that the defendants’ “fabrications 

and misrepresentations during their investigation and prosecution 

led directly to the corruption of Mr. Bartlett’s trial and a fraudulent

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21-11112, et al. Opinion of the Court 37

verdict.” But the Bartletts never alleged anything about the trial in 

their complaint. Nor did they ever attempt to explain how the defendants’ misstatements during the investigation in any way “corrupt[ed]” the criminal trial. They had to do that to overcome the 

conclusive effect of the directed verdict denial and the jury verdict, 

and they didn’t.

Third, the Bartletts point to our decision in Blue v. Lopez, 

901 F.3d 1352 (11th Cir. 2018). In that case, we considered whether 

a trial court’s order denying a criminal defendant’s motion for a 

directed verdict served as conclusive proof of probable cause under 

§ 1983. Id. at 1354. We held that it did not: “Federal law, not state 

law, governs the resolution of [§] 1983 claims. And federal law does 

not allow the denial of a motion for directed verdict to serve as 

conclusive evidence of probable cause.” Id. at 1358. But, here, we 

are considering state law claims, not § 1983 claims. And under 

Georgia law, the denial of the directed verdict motion and the 

jury’s verdict are conclusive. As a result, our decision in Blue does 

not apply to the Bartletts’ state intentional infliction of emotional 

distress claim.

And fourth, the Bartletts insist that, even if the directed verdict denial and the criminal conviction doom Mr. Bartlett’s intentional infliction of emotional distress claim, that says nothing about 

Mrs. Bartlett’s claim. But, as we explained earlier, the defendants

had probable cause to search and arrest Mrs. Bartlett because Captain Jack’s paid substantial cash prizes to Officer Welch and others.

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38 Opinion of the Court 21-11112, et al.

Conversion (Count Eight)

The Bartletts also brought a count for conversion. The Bartletts alleged that the defendants “confiscate[ed] [their] property and 

money knowing the confiscation was being accomplished under 

false pretenses” and “refus[ed] to return [their] property and 

money.” This claim fails for two reasons. First, the prosecutors 

are entitled to absolute immunity under Georgia law for securing 

judicially approved warrants. Second, the conversion claim fails 

because the defendants had probable cause.

Absolute Immunity

 A prosecutor, as we explained above, is entitled to absolute 

immunity under Georgia law for actions that are “intimately associated with the judicial phase of the criminal process.” Holsey, 377 

S.E.2d at 201 (quoting Barbera v. Smith, 836 F.2d 96, 99 (2d Cir.

1987)). Here, the Bartletts alleged that the prosecutors confiscated 

their property by filing a complaint for the civil racketeering case, 

filing a motion in the civil case to freeze the Bartletts’ assets, and 

securing a warrant with what the Bartletts say was “false evidence.” 

But instituting a case, filing a motion, and securing a warrant are 

heartland prosecutorial functions that are “intimately associated 

with the judicial phase” of the litigation. Imbler, 424 U.S. at 430; 

cf. Kalina, 522 U.S. at 130 (holding that a prosecutor is absolutely 

immune for his “decision to file charges” and his “presentation of

. . . [a] motion [for an arrest warrant] to the court”). Thus, the conversion claim falls to prosecutorial immunity.

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21-11112, et al. Opinion of the Court 39

Probable Cause

The conversion claim also fails because the defendants had 

probable cause to seize the Bartletts’ cash and property. Conversion “consists of an unauthorized assumption and exercise of the 

right of ownership over personal property belonging to another, in 

hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” Decatur Auto Ctr. v. Wachovia Bank, N.A., 583 

S.E.2d 6, 7–8 (Ga. 2003) (quoting Md. Cas. Ins. Co. v. Welchel, 356 

S.E.2d 877, 880 (Ga. 1987)). 

But “[i]t has long been the law in Georgia ‘that possession 

acquired fairly under legal process, is not a wrongful conversion.’” 

Taylor v. Gelfand, 505 S.E.2d 222, 224 (Ga. Ct. App. 1998) (quoting 

Smith v. Kershaw, 1 Ga. 259, 261 (1846)). “Rather, when the ‘property of a person [is] seized under a valid process issued against 

him[,] . . . malice, want of probable cause, and termination of the 

proceeding in favor of the defendant in the process [must] be alleged and proved to support an action for damages against the persons causing the process to be issued and levied.’” Id. (quoting Fulton Grocery Co. v. Maddox, 36 S.E. 647, 649 (Ga. 1900)).

Here, the defendants secured a warrant to seize the Bartletts’

property, and, thus, seized the property under legal process. So the 

Bartletts had to plausibly allege a “want of probable cause.” See 

Fulton Grocery, 36 S.E. at 649. The Bartletts can’t make that showing for two reasons. First, as we described earlier, the defendants 

had probable cause to believe that Captain Jack’s was paying cash 

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40 Opinion of the Court 21-11112, et al.

prizes to those who won on the games, in violation of section 16-

12-35(g). Second, Georgia law imposes a conclusive presumption 

of probable cause where, as here, the trial court denies a motion 

for a directed verdict and a jury convicts the defendant. See Monroe, 353 S.E.2d at 25. The state court’s denial of Mr. Bartlett’s directed verdict motion and the jury’s guilty verdict were conclusive 

evidence of probable cause that he operated a gambling establishment.

Because the prosecutors are entitled to absolute immunity 

and because the defendants had probable cause to seize the Bartletts’ property, the Bartletts’ conversion claim fails.

Abusive Litigation (Count Eleven)

The Bartletts’ abusive litigation claim—which it brought 

only against the prosecutors—is also barred by prosecutorial immunity under Georgia law. “[I]n initiating a prosecution and in 

presenting the [s]tate’s case, the prosecutor is immune from a civil 

suit for damages under § 1983.” Imbler, 424 U.S. at 431. Here, the 

Bartletts sue the prosecutors for just that—their “initiation, continuation, and procurement of the [c]ivil [racketeering] [a]ction.” The 

prosecutors are shielded by absolute immunity on the abusive litigation claim. See Robbins, 402 S.E.2d at 344 (noting that the “decision to file . . . charges against an individual is an act intimately 

associated with the judicial phase of the [litigative] process”).

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21-11112, et al. Opinion of the Court 41

Attorneys’ Fees (Counts Six and Twelve), Punitive Damages

(Count Nine), and Injunctive Relief (Count Ten)

The Bartletts also brought counts for punitive damages, injunctive relief, and attorneys’ fees under 42 U.S.C. § 1988 and GA.

CODE ANN. § 13-6-11. These claims, the parties agree, rise and fall 

with the Bartletts’ substantive claims. Because the Bartletts’ substantive claims fail, these claims must also fail.

The Motion for Leave to Amend

The Bartletts moved for leave to file a third amended complaint. Their proposed complaint would add two § 1983 claims: 

one for malicious prosecution under the Fourth and Fourteenth 

Amendments and one for excessive fines under the Eighth and 

Fourteenth Amendments. The district court denied the motion to 

amend. Because the excessive fines claim was unduly delayed and 

amending to add a malicious prosecution claim would be futile, we 

affirm.

Once the time to amend as a matter of right expires, a party 

“may amend its pleading only with the opposing party’s written 

consent or the court’s leave,” which “[t]he court should freely give 

. . . when justice so requires.” FED. R. CIV. P. 15(a)(2). “The thrust 

of Rule 15(a) is to allow parties to have their claims heard on the 

merits, and accordingly, district courts should liberally grant leave 

to amend when ‘the underlying facts or circumstances relied upon 

by a plaintiff may be a proper subject of relief.’” In re Engle Cases, 

767 F.3d 1082, 1108 (11th Cir. 2014) (quoting Foman v. Davis, 371 

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42 Opinion of the Court 21-11112, et al.

U.S. 178, 182 (1962)). Even so, the district court may deny a motion 

for leave to amend “(1) where there has been undue delay, bad 

faith, dilatory motive, or repeated failure to cure deficiencies by 

amendments previously allowed; (2) where allowing amendment 

would cause undue prejudice to the opposing party; or (3) where 

amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 

1163 (11th Cir. 2001).

Excessive Fines Claim

The district court didn’t abuse its discretion in finding that 

the excessive fines claim was “unduly delayed.” See Burger King 

Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999). “Although 

generally, the mere passage of time, without more, is an insufficient reason to deny leave to amend a complaint, undue delay may 

clearly support such denial.” Hester v. Int’l Union of Operating 

Eng’rs, AFL-CIO, 941 F.2d 1574, 1578–79 (11th Cir. 1991) (citation 

omitted). “[A] district court has discretion to deny leave to amend 

when the moving party’s delay was the result of bad faith, dilatory 

tactics, or sheer inadvertence, or when the moving party offers no 

adequate explanation for a lengthy delay.” In re Engle Cases, 767 

F.3d at 1119.

Here, the district court didn’t abuse its discretion in finding 

that there was a lengthy delay with no adequate explanation. The 

Bartletts filed this case in August 2016. In their complaint, the Bartletts alleged that the defendants seized their property—which is the 

basis for the excessive fines claim—in May 2015, over a year before 

they sued. Yet the Bartletts didn’t include their excessive fines 

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21-11112, et al. Opinion of the Court 43

claim in their complaint, their amended complaint, or their second 

amended complaint. Instead, they waited until May 2020—almost 

four years after they filed the case—to move to add an excessive 

fines claim. 

The Bartletts say that they waited all this time because “the 

jury’s acquittal of Mr. Bartlett [in early 2018] on all [racketeering]

charges establishes the lack of any factual or legal basis for the seizure and civil forfeiture of [the Bartletts’] property and assets upon 

which [the] Eighth Amendment claim is based.” But the Bartletts 

never explain why they waited more than two years after the acquittal in 2018 to finally pursue their excessive fines claim. On this 

point, the Bartletts only say the case was stayed for some time in 

the district court. But, as the district court explained, the case 

wasn’t stayed “until two months [after the acquittal], and even with 

the stay, [the Bartletts] could have moved to reopen the case to 

assert this claim.” We see no abuse of discretion.

Indeed, in In re Engle Cases, we affirmed the district court 

under similar circumstances. There, the district court denied a motion for leave to amend where there was a four-year delay. Id. at 

1118. We rejected the plaintiffs’ argument that the “defendants 

would not be prejudiced because [the cases] laid dormant on account of [a] stay,” reasoning that this stay did “not automatically 

excuse plaintiffs’ counsel’s four-year delay.” Id. We emphasized 

that “prejudice to the nonmoving party is not the only factor courts 

consider; the reasons for the delay are also relevant.” Id. at 1119. 

We explained that, putting prejudice to the side, the district court 

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44 Opinion of the Court 21-11112, et al.

retained “discretion to deny leave to amend when the moving 

party’s delay was the result of bad faith, dilatory tactics, or sheer 

inadvertence, or when the moving party offers no adequate explanation for a lengthy delay.” Id. That’s exactly what happened here. 

The Bartletts offered no good reason for their years-long delay. 

Thus, the district court didn’t abuse its discretion in denying their

motion as to the excessive fines claim.

Malicious Prosecution Claim

We also agree with the district court that the Bartletts’ malicious prosecution claim fails because the officers are entitled to 

qualified immunity.7

 Unlike a false arrest or false imprisonment 

claim, “[m]alicious prosecution . . . requires a seizure ‘pursuant to 

legal process.’” Williams v. Aguirre, 965 F.3d 1147, 1158 (11th Cir. 

2020) (quoting Black v. Wigington, 811 F.3d 1259, 1267 (11th Cir. 

2016)). A seizure is “pursuant to legal process” if it is “warrantbased” or if it “follow[s] an arraignment, indictment, or probablecause hearing.” Id.

“We can simplify our standard for malicious prosecution 

into two elements: the plaintiff must prove (1) that the defendant 

violated his Fourth Amendment right to be free from seizures pursuant to legal process and (2) that the criminal proceedings against 

him terminated in his favor.” Luke v. Gulley, 975 F.3d 1140, 1144 

7

 The Bartletts don’t challenge the dismissal of the malicious prosecution claim 

against the prosecutors, so they forfeit that part of the claim. See Campbell, 

26 F.4th at 873. 

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21-11112, et al. Opinion of the Court 45

(11th Cir. 2020). The Bartletts fall short at the first step because 

there was no violation of their right to be free from seizures pursuant to legal process.

To establish a violation of one’s Fourth Amendment right to 

be free from seizures pursuant to legal process, “a plaintiff must 

establish (1) that the legal process justifying his seizure was constitutionally infirm and (2) that his seizure would not otherwise be 

justified without legal process.” Williams, 965 F.3d at 1165. The 

plaintiff must prove that his seizure would not have been justified 

without legal process because, “[e]ven if an arrest warrant is invalid, we have held that a seizure is still constitutional if it would be 

reasonable without a warrant.” Id. at 1164. “[A] ‘brief period of 

detention’ is lawful without some form of legal process,” id. (quoting Gerstein v. Pugh, 420 U.S. 103, 113–14 (1975), so a malicious 

prosecution plaintiff must show that he was detained for more than 

a brief period.

The Bartletts failed to plausibly allege that their seizure 

would not have been justified without legal process because they 

never alleged that they were detained for more than a brief period. 

See id. Because the Bartletts insufficiently addressed this requirement in their proposed complaint, their malicious prosecution 

claim was futile. See Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th 

Cir. 2007) (“Leave to amend a complaint is futile when the complaint as amended would still be properly dismissed[.]”).

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46 Opinion of the Court 21-11112, et al.

CONCLUSION 

We affirm the district court’s orders dismissing the Bartletts’ 

claims against the prosecutors and denying the Bartletts’ motion

for leave to amend. But we reverse the district court’s orders denying the officers’ motions for judgment on the pleadings. Because 

the officers are entitled to qualified immunity on the Bartletts’ 

claims, and they failed to state claims for relief, we remand for the 

district court to enter judgment on the pleadings for the officers. 

AFFIRMED IN PART; REVERSED AND REMANDED IN 

PART WITH INSTRUCTIONS. 

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