[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_________________________

No. 14-11341

Non-Argument Calendar

_________________________

D.C. Docket No. 1:12-cv-00872-WBH

KENNETH DAVID BUTLER,

 Plaintiff-Appellant,

versus

DAVID SCHIRALLI, et al.,

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(August 29, 2014)

Before TJOFLAT, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:

Plaintiff appeals the District Court’s March 5, 2013, order, Doc. 154, 

granting defendants’ summary judgment on his claims for damages under 42 

U.S.C. § 1983 for defendants’ alleged infringement of his rights under the Fourth 

Case: 14-11341 Date Filed: 08/29/2014 Page: 1 of 3 
2

and Fourteenth Amendments to the U.S. Constitution.1 His claims arose out of an 

undercover sting operation the Gwinnett County Police Department (GCPD) 

conducted at a Kmart store after receiving reports of illicit sexual activity

occurring in the store’s men’s bathroom. Doc. 154, at 1–2. After investigator 

Doherty 

saw what he thought was masturbation . . . other police officers 

entered the bathroom and took Plaintiff to Kmart’s loss control office 

and interviewed him. The police gave Plaintiff a misdemeanor

citation for loitering for sexual purposes and Plaintiff left the Kmart. 

The charges against Plaintiff were later changed to public

indecency. . . . After [Plaintiff] was cited by police, the 

GCPD . . . . issued a press release on behalf of the

department . . . [stating] that [Plaintiff] had been arrested and

charged with loitering for the purpose of engaging in solicitation of

sex acts in a public place and that Plaintiff had admitted that he

was in the Kmart men’s room for that purpose.

Id. at 4–5. In granting summary judgment on Plaintiff’s § 1983 claims, the court 

assumed that Plaintiff’s detention was sufficient to support a § 1983 claim for false 

arrest and held that inspector Doherty was entitled to qualified immunity—because 

he had arguable probable cause to believe that Plaintiff was engaging in the illicit 

activity with which he was charged. Id. at 8–9. The court therefore dismissed 

Plaintiff’s Fourth Amendment claims against Doherty and the other defendants. 

 

1 Plaintiff also appeals the District Court’s dismissal without prejudice of his state law 

claims brought under the court’s supplemental jurisdiction. See 28 U.S. § 1367(c)(3). In 

affirming the court’s judgment on Plaintiff’s federal constitutional claims, we affirm its dismissal 

without prejudice of his state law claims.

Case: 14-11341 Date Filed: 08/29/2014 Page: 2 of 3 
3

It also found no merit in the officers’ failure to inform him of his Miranda rights 

because the officers never took Plaintiff into custody. Id. at 9.

Plaintiff challenges the court’s summary judgment on a variety of grounds. 

We find that none has merit. Nor does his argument that the court should have 

sanctioned defendants for spoliation—specifically, that 

Kmart deleted the videos from security cameras on the day

that he was cited for loitering, the GCPD failed to secure copies

of the videos, and the GCPD failed to collect evidence from the

men’sroom, such as a piece of tissue paper that . . . Doherty

had seen on the floor and thought was a signal for solicitation as

well as taking photographs of the graffiti on the men's room walls.

Id. at 11.

AFFIRMED.

Case: 14-11341 Date Filed: 08/29/2014 Page: 3 of 3