[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-10144

Non-Argument Calendar

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D.C. Docket No. 2:14-cv-00959-MHT-PWG

WINDHAM TODD PITTMAN, 

Plaintiff - Appellant,

versus

STATE FARM FIRE & CASUALTY COMPANY, 

PAT CRAIG, 

TERESA SPENCE, 

EUGENE CAMPBELL, 

BERT SHEFFIELD NETTLES, et al.,

Defendants – Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

________________________

(December 5, 2016)

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Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Windham Todd Pittman filed a lawsuit against State Farm Fire and Casualty 

Insurance Company (“State Farm”), Pat Craig, Teresa Spence, Eugene Campbell, 

and others alleging, among other claims, violations of his civil rights under 28 

U.S.C. § 1983. Pittman’s claims arise out of the aftermath of an alleged robbery at 

his home. Following the alleged robbery, Pittman filed an insurance claim with his 

insurer, State Farm. After performing an investigation into the claim, State Farm 

concluded that Pittman’s claim was fraudulent and denied the claim. Criminal 

charges were filed against Pittman. Generally, Pittman claimed that the defendants 

entered into a conspiracy to pursue criminal charges against him after he filed his 

insurance claim, overlooking evidence that he was not involved in the burglary.

Pittman ultimately brought four claims against State Farm, Craig, Spence, 

and Campbell in an Amended Complaint containing over three-hundred numbered 

paragraphs. As relevant to this appeal, Count One alleged a violation of Pittman’s 

Fourth Amendment rights pursuant to 28 U.S.C. § 1983, and Count Two alleged a 

violation of Pittman’s Fifth Amendment rights. In Counts Three and Four, Pittman 

brought state-law claims for malicious prosecution and defamation. On motions to 

dismiss, the district court dismissed with prejudice the federal civil-rights claims 

set forth in Counts One and Two. The district court also dismissed without 

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prejudice the state-court claims, allowing Pittman to re-file these claims in state 

court. 

After careful consideration, we affirm the district court’s order dismissing 

the Amended Complaint. 

I.

On July 4, 2010, Pittman and his family returned from vacation and found 

that their home had been burglarized. Pittman reported the incident to the police 

and to State Farm, the company that insured Pittman’s home and its contents.

More than seventy pieces of art, various pieces of expensive jewelry, guns, and a 

computer had been taken from the Pittman home. Pittman reported the value of the 

missing items to be approximately $500,000.

State Farm found the insurance claim to be suspicious and assigned Craig, 

an investigator with its Special Investigations Unit, to review the claim.1

 After 

conducting an investigation, on April 11, 2011, State Farm concluded that Pittman 

was involved in the alleged burglary and had fraudulently reported the items as 

stolen, so it denied his claim. 

Pittman sued State Farm for bad faith and breach of contract shortly before 

State Farm denied his claim. The district court resolved the case in favor of State 

 1

State Farm noted that Pittman’s company was in the middle of a Chapter 11 bankruptcy, 

Pittman had been sued on the individual guarantee of certain debts of the company for more than 

$700,000, and Pittman had only recently increased his homeowner’s insurance coverage before 

going on vacation. 

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Farm, Pittman v. State Farm Fire & Cas. Co., 868 F. Supp. 2d 1335 (M.D. Ala. 

2012), and, on appeal, this Court upheld the decision of the district court. See 

Pittman v. State Farm Fire & Cas. Co., 519 F. App’x 656 (11th Cir. 2013).

At some point during State Farm’s investigation of the insurance claim, 

Craig met with Pittman’s former mistress, Defendant Teresa Spence.2 At one of 

their meetings, Spence told Craig that “she had come into possession” of some of 

the items missing from Pittman’s home. Craig is alleged to have recorded the 

meeting with Spence, but he did not produce the recording in the course of 

Pittman’s prior litigation against State Farm. The Amended Complaint asserts that, 

following the meeting between Craig and Spence, State Farm agreed not to 

prosecute Spence if she agreed to blame the burglary on Pittman and to cooperate 

in State Farm’s prosecution of Pittman. 

Pittman further contends that State Farm and Craig introduced Spence to 

Defendant Eugene Campbell, a deputy with the Geneva County, Alabama, 

Sheriff’s Office, despite knowing of her involvement with the burglary.

3

 In the 

meantime, Spence allegedly told Pittman’s current girlfriend, Heather Ledbetter, 

that Pittman’s lost artwork was about to be located by police in a storage unit in 

 2 According to the Amended Complaint, Spence framed Pittman for the burglary because 

he had terminated their long-term relationship. Spence claims that she was not involved in the 

burglary and contends that Pittman named her as a defendant in the lawsuit as revenge for 

disclosing to State Farm her knowledge of Pittman’s involvement in the alleged burglary.

3 Pittman claims that, at some point, Spence and Campbell began a personal relationship.

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Brantley, Alabama. Following the conversation, Heather4 called her father, Ronnie

Ledbetter, to relay the information provided by Spence. Heather asked her father 

to contact State Farm, so the company could recover the property. Ronnie

subsequently went to a State Farm office and, as a result, Craig later met him and 

encouraged him to speak with Deputy Campbell, which Ronnie did. 

After speaking with Spence and Ronnie, Campbell executed an affidavit in 

support of a search warrant for a storage unit in Brantley.5 Pittman asserts that 

generating false probable cause for the search warrant was Spence’s aim when she 

spoke with Campbell and Heather. As a result of the execution of the search 

warrant, many of the items reported stolen by Pittman were found in the storage 

unit. Additional items belonging to Pittman were found in the storage unit, along 

with the items listed as missing in the insurance claim. 

Following the search of the storage unit, Pittman was arrested and indicted 

for attempted theft of property in the first degree. Throughout the criminal case 

and the investigation leading up to it, the facts of Pittman’s alleged involvement 

were publicized over the radio, television broadcasts, on the internet, and in print 

media.

 4 We refer to the Ledbetters by their first names to avoid confusion.

5 The storage unit was registered under an alias, and the payment of rent and submission 

of the registration took place through a drop box so that the owners of the unit were unable to 

verify the identity of the person who rented the unit.

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The criminal case against Pittman ended in a dismissal. The charges were 

ultimately dropped after Pittman entered into an agreement with the prosecutor and 

agreed to pay court costs.

Pittman filed the underlying lawsuit alleging a violation of his civil rights, 

malicious prosecution, and defamation. Throughout the Amended Complaint,

Pittman alleges that Spence admitted to being in possession of Pittman’s stolen 

property after the burglary and that Campbell, Craig, and State Farm were aware of 

this information. 

Finding that Pittman failed to state a claim under Rule 12(b)(6), Fed. R. Civ. 

P., the district court dismissed the Section 1983 claims with prejudice and the state 

claims without prejudice to re-file in state court. We agree and affirm.

II.

We review de novo a district court’s dismissal of a complaint for failure to 

state a claim under Rule 12(b)(6), “accepting the allegations in the complaint as 

true and construing them in the light most favorable to the plaintiff.” Ironworkers 

Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th Cir. 2011) 

(quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010)). 

We need not accept as true allegations in a complaint that are merely legal 

conclusions. Ashcroft v. Iqbal, 556 U.S. 678, 663, 129 S. Ct. 1937, 1949 (2009). 

Plaintiffs must provide the grounds for entitlement to relief; mere “labels and 

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conclusions,” or a “formulaic recitation of the elements of a cause of action will 

not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1974 

(2007). To survive a motion to dismiss, plaintiffs must allege sufficient facts to 

push their “claims across the line from conceivable to plausible.” Am. Dental 

Ass’n, 605 F.3d at 1289 (quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1974).6

III.

After careful review of the 304 paragraphs of allegations against the 

defendants, we conclude that the district court properly dismissed the Amended 

Complaint.

A. Shotgun Pleading

To begin with, Pittman’s Amended Complaint constitutes a classic “shotgun 

pleading” because each count reincorporates by reference all preceding paragraphs 

of the Amended Complaint. We have “roundly, repeatedly, and consistently 

condemn[ed]” shotgun pleadings. See Davis v. Coca–Cola Bottling Co. Consol., 

516 F.3d 955, 979 (11th Cir. 2008). A complaint is a shotgun pleading when it is 

“virtually impossible to know which allegations of fact are intended to support 

which claim(s) for relief.” Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty. 

Coll., 77 F.3d 364, 366 (11th Cir. 1996). A pleading drafted in this manner “is in 

 6 Although Pittman devotes approximately eight pagers of his Initial Brief to urging us to

take positions inconsistent with the holdings of both Iqbal and Twombly, we decline. We must 

adhere to these cases, as they are binding Supreme Court precedent. 

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no sense the ‘short and plain statement of the claim’ required by Rule 8[(a)(2), 

Fed. R. Civ. P.],” and “completely disregards Rule 10(b)’s requirement that 

discrete claims should be plead in separate counts.” Magluta v. Samples, 256 F.3d 

1282, 1284 (11th Cir. 2001) (per curiam).

Here, Pittman presented 262 paragraphs containing general allegations in his 

Amended Complaint. He then set forth four counts against the defendants. In each 

count, however, Pittman realleged “all prior paragraphs as if set out here in full.” 

The Amended Complaint is a quintessential shotgun pleading since it 

“incorporate[s] every antecedent allegation by reference into each subsequent 

claim for relief or affirmative defense.” Wagner v. First Horizon Pharm. Corp., 

464 F.3d 1273, 1279 (11th Cir. 2006) (citing Magluta, 256 F.3d at 1284)). But 

even overlooking that problem, the district court did not err in granting the 

defendants’ motions to dismiss.

B. Waiver

While the Amended Complaint contains two state claims—claims for 

malicious prosecution and defamation—those claims are not at issue in this appeal. 

As is clear by now, “a legal claim or argument that has not been briefed before the 

court is deemed abandoned and its merits will not be addressed.” Access Now, Inc. 

v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). An issue is likewise

considered abandoned when “a party seeking to raise a claim or issue on appeal 

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[fails to] plainly and prominently so indicate.” United States v. Jernigan, 341 F.3d 

1273, 1284 n. 8 (11th Cir. 2003). 

Pittman has not raised as error the district court’s dismissal of the state-court 

claims, so we do not address them. As the district court noted, Counts Three and 

Four of the Amended Complaint—the state-court claims—were “dismissed 

without prejudice, and with leave to refile in state court.” Accordingly, Pittman is 

free to refile his malicious-prosecution and defamation claims in state court. 

C. Pittman’s Civil Rights Claims 

The two counts at the center of this appeal are Counts One and Two of the 

Amended Complaint—Pittman’s civil-rights claims brought pursuant to Section 

1983.7

 We address each in turn. 

1. Count One

In Count One, Pittman attempts to set forth a conspiracy claim against the 

defendants under the Fourth Amendment to the Constitution. Pittman alleges that 

Deputy Campbell “used fabricated probable cause to obtain a search warrant for 

the Brantley storage Unit where the stolen artwork was recovered.” The Amended 

Complaint continues, asserting that Deputy Campbell bolstered the probable cause 

affidavit with false statements attributed to other defendants. Next, Pittman alleges 

 7 Pittman’s Initial Brief makes clear that only the first two counts of the Amended 

Complaint—those alleging violations of the Fourth and Fifth Amendments—are intended to 

allege federal claims for an alleged violation of his civil rights under § 1983. 

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that Deputy Campbell “used this falsified probable cause to obtain the search 

warrant for the storage unit in Brantley, Alabama where he unsurprisingly located 

the stolen items placed there by Spence or someone working on her behalf and at 

her direction to frame Pittman.” Pittman concluded, “[t]hese acts violate the 4th 

Amendment’s protections against obtaining search warrants illegally.” 

All of the allegations supporting the Fourth Amendment claim appear to 

relate to an alleged improper search and seizure of items in the storage unit. But

conspicuously absent from the Amended Complaint is any allegation that Pittman 

owned the storage unit or had any expectation of privacy with respect to the unit. 

To the contrary, the facts as pled by Pittman imply that the storage unit did not

belong to him and, instead, belonged to Spence, the person who allegedly stole the 

artwork from his home. And, as a practical matter, Pittman could not allege an 

ownership interest in the storage unit since such a fact would implicate him in the 

burglary. 

Pittman’s lack of ownership or other interest in the storage unit is fatal to his 

Fourth Amendment claim. As the Supreme Court has stated, “in order to claim the 

protection of the Fourth Amendment, a defendant must demonstrate that he 

personally has an expectation of privacy in the place searched, and that his 

expectation is reasonable.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 

472 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 140 99 S. Ct. 421 (1978)). 

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Although lack of ownership of the place searched is not dispositive, the person 

alleging a Fourth Amendment violation must have some relationship with the place 

searched in order to assert an expectation of privacy. See Carter, 119 S. Ct. at 474; 

United States v. Segura-Baltazar, 448 F.3d 1281, 1285 (11th Cir. 2006) (Fourth 

Amendment claim requires an invasion of the plaintiff’s reasonable expectation of 

privacy). 

Here, Pittman failed to allege any privacy interest in the storage unit or any 

connection at all to the unit. Pittman’s failure to allege any privacy interest in the 

storage unit is fatal to his claim. Accordingly, the district court did not err when it 

dismissed Count One of the Amended Complaint. And, while the district court did 

not dismiss Count One on these grounds, we may affirm a judgment based on any 

grounds supported by the record. Akanthos Capital Mgmt., LLC v. Atlanticus 

Holdings Corp., 734 F.3d 1269, 1271 (11th Cir. 2013) (per curiam) (citation 

omitted).

To the extent Count One may be construed to include a claim for unlawful 

arrest and detention, dismissal of the claim is likewise warranted. First, Pittman 

waived any argument that State Farm conspired with the other defendants to 

violate his Fourth Amendment rights because he failed to challenge the district 

court’s dismissal in this regard. See Access Now, 385 F.3d at 1330. On appeal, 

Pittman focuses on the individual private actors’ roles in the alleged conspiracy 

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and fails to discuss the separate standard applicable to corporations facing § 1983 

claims. To the extent Pittman’s claim against State Farm was not waived, we find 

the district court’s dismissal of the claim to be appropriate. A private corporation 

“may be liable under § 1983 if it is established that the constitutional violation was 

the result of the corporation’s policy or custom.” Harvey v. Harvey, 949 F.2d 

1127, 1129-30 (11th Cir. 1992). The Amended Complaint is devoid of any 

allegations that State Farm had a “policy or custom” to deprive its policyholders of 

their constitutional rights. Thus, dismissal with prejudice with respect to State 

Farm was warranted. 

Pittman’s Fourth Amendment conspiracy claims against the private 

individuals fare no better. In order to establish a Section 1983 claim, Pittman must 

show that he “was deprived of a federal right by a person acting under color of 

state law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). 

“[T]he under-color-of-state-law element of § 1983 excludes from its reach ‘merely 

private conduct, no matter how discriminatory or wrongful.’” Am. Mfrs. Mut. Ins. 

Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct. 977, 985 (1999) (citations omitted). 

We have held, in order to find private parties to be state actors, one of three 

tests must be met: (1) the State has coerced or at least significantly encouraged the 

action alleged to violate the Constitution (“the state compulsion test”); (2) the 

private parties performed a public function that was traditionally the exclusive 

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prerogative of the State (“public function test”); or (3) “the State had so far 

insinuated itself into a position of interdependence with the [private parties] that it 

was a joint participant in the enterprise[]” (“nexus/joint action test”). Hogue, 241 

F.3d at 1347 (citing NBC, Inc. v. Communications Workers of America, 860 F.2d 

1022, 1026–27 (11th Cir.1988)); see also Focus on the Family v. Pinellas Suncoast 

Transit Auth., 344 F.3d 1263, 1277 (11th Cir. 2003). Because Pittman alleged a 

conspiracy between the defendants, the nexus/joint action test is most applicable. 

A conspiracy to violate another person’s constitutional rights violates 

Section 1983. Rowe v City of Ft. Lauderdale, 279 F.3d 1271 (11th Cir. 2002) 

(citations omitted). “[T]he acts of a private party are fairly attributable to the state 

on certain occasions when the private party acted in concert with state actors.” 

Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir. 1990) (citation omitted). In 

order to establish a § 1983 conspiracy, a plaintiff must show that the defendants 

“reached an understanding to violate [his] rights.” Id. at 1283 (citation omitted). 

While a plaintiff need not come forward with a “smoking gun” to show an 

understanding, he must “show some evidence of agreement between the 

defendants” and willful participation. Id. (citation omitted) “The linchpin for 

conspiracy is agreement, which presupposes communication.” Bailey v. Bd. of 

Cnty. Comm’rs of Alachua Cnty., 956 D.2d 1112, 1122 (11th Cir. 1992). 

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A showing of conspiracy requires more than conclusory allegations and a 

“mere scintilla of evidence.” Rowe, 279 F.3d at 1283-84 (citing Walker v. Darby, 

911 F.2d 1573, 1577 (11th Cir. 1990)). A plaintiff bringing a conspiracy claim 

must inform the defendants of the nature of the conspiracy alleged. Fullman v. 

Graddick, 739 F.2d 553, 556–57 (11th Cir. 1984) (citation omitted). It is not 

enough to aver in the complaint that a conspiracy existed. Id. “A plaintiff 

claiming a conspiracy under § 1983 must make particularized allegations that a 

conspiracy exists.” See GJR Investments, Inc. v. County of Escambia, 132 F.3d 

1359, 1370 (11th Cir. 1998). Vague and conclusory allegations that merely 

suggest a § 1983 conspiracy are insufficient to withstand a motion to dismiss. 

Fullman, 739 F.2d at 556-57. The claims must include enough factual allegations 

to “raise a right to relief above the speculative level.” See Twombly, 550 U.S. at 

554. 

In order to state a § 1983 claim against Craig and Spence, Pittman must 

demonstrate more than an agreement between these two private individuals. He 

must show that they conspired with the only state actor in this case, Deputy 

Campbell, to violate Pittman’s constitutional rights. But even taking Pittman’s 

allegations as true, the Amended Complaint fails to allege such a plausible 

agreement. True, the Amended Complaint asserts that Craig met with Spence, and 

he agreed not to prosecute Spence if she blamed Pittman for the burglary of his 

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home. This agreement allegedly came to fruition after Spence told Craig she was 

in possession of some of Pittman’s belongings. While these allegations may 

establish an agreement between Craig and Spence, an agreement between private 

actors is not enough. 

The Amended Complaint also alleges that “State Farm, its lawyers, and 

Craig began working with the active assistance of Spence to criminally prosecute” 

Pittman and that Craig introduced Spence to Deputy Campbell. Again, these 

allegations do not establish an agreement between the private actors and Deputy 

Campbell. Merely “introducing” Spence to Deputy Campbell is insufficient to 

establish a conspiracy to violate Pittman’s constitutional rights. 

Similarly, although Pittman alleges that Spence was “involved with 

Campbell” and that “she was using Campbell” in order to obtain Pittman’s 

property, these allegations do not rise to the level of an actionable claim because 

they fail to set forth any agreement between Spence and Deputy Campbell. The 

allegations tend to suggest that Spence used Deputy Campbell as an unsuspecting

pawn to investigate Pittman, but they do not establish an agreement between the 

two defendants. 

Pittman points primarily to paragraph 256 of his Amended Complaint to 

support his conspiracy claim. In that paragraph, Pittman alleges three alternative 

theories of conspiracy as follows:

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Either State Farm, its lawyers and Craig agreed with 

Spence not to disclose the fact of Spence’s involvement 

in the crime to Campbell and other law enforcement to 

gain law enforcement’s help in prosecuting Pittman or; 

Spence and Campbell did not disclose to State Farm, its 

lawyers and Craig that they were aware of Spence’s 

involvement in the crime; or all the defendants 

understood Spence’s involvement in the crime and 

agreed to prosecute Pittman for the crime anyway.

 Pittman concedes that under the first scenario, his claim for conspiracy 

would fail because any alleged agreement did not involve a state actor. With 

respect to the second scenario, Pittman admits on appeal that the sentence is poorly 

worded.8

 The scenario also does not establish any agreement between Craig and 

Campbell. Finally, while the third scenario potentially sets forth an agreement 

between the parties, its stated conspiracy theory—based on complete speculation, 

as demonstrated by the fact that it is alleged in the alternative to the other two 

hypotheses, where one of the other theories concedes that Deputy Campbell had no 

knowledge of Spence’s alleged involvement in the crime—is the type of 

conclusory allegation that cannot satisfy the pleading standard set forth in Rule 8, 

Twombly and Iqbal. In short, Pittman did not adequately plead any clear 

agreement between the private defendants and a state actor above the speculative 

level. 

 8 Pittman also concedes that he did not expressly allege that Deputy Campbell knew 

Spence had information related to the location of the stolen property. 

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Finally, while Deputy Campbell is a state actor who may be held liable 

under § 1983 absent a conspiracy with the other defendants, we find that the 

district court properly dismissed Count One against Deputy Campbell. In essence, 

Pittman contends that Deputy Campbell fabricated the evidence used to support the 

search and arrest warrants. Where a plaintiff challenges the constitutionality of a 

seizure based on an allegedly false affidavit supporting a warrant, the plaintiff must 

show that the officer deliberately or with reckless disregard for the truth made

material false statements or omitted material facts. Franks v. Delaware, 438 U.S.

154, 155, 98 S. Ct. 2674, 2676 (1978). The allegations in the Amended Complaint 

fall short of demonstrating that Deputy Campbell fabricated evidence in the 

warrants or that he had knowledge that what he presented in his affidavit was false. 

Significantly, Pittman sets forth no allegations in the Amended Complaint of 

precisely which facts in Deputy Campbell’s affidavit were allegedly false or 

fabricated. 

Pittman concedes that Deputy Campbell’s affidavit was based on 

information he received from Ronnie Ledbetter and one of State Farm’s attorneys. 

Pittman alleges that Spence was the original source of the information in the search 

warrant that led to the discovery of Pittman’s items in the storage unit, which then 

led to his arrest. In other words, Pittman implies that Spence baited Heather and 

Ronnie Ledbetter to provide information to police. But Pittman fails to allege that 

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Deputy Campbell had knowledge that the information he received from the 

Ledbetters was false. Indeed, the Amended Complaint does not assert that 

Campbell knew that Ronnie (or Heather) Ledbetter’s information came from 

Spence. Under these circumstances, the § 1983 claim against Deputy Campbell

necessarily fails. See Dahl v. Holley, 312 F.3d 1228, 1235 (11th Cir. 2002) 

(granting qualified immunity to officer where he accurately relayed information 

obtained from an informant and “there [was] nothing to suggest that he knew this 

information [was] inaccurate.”) 

2. Count Two

In Count Two, Pittman attempts to set forth a conspiracy claim against the 

defendants under the Fifth Amendment to the Constitution. The Fifth Amendment, 

which protects individuals from being “deprived of life, liberty, or property, 

without due process of law,” U.S. Const. amend. V, applies to only federal, not 

state, actors. Knoetze v. U.S. Dep't of State, 634 F.2d 207, 211 (5th Cir. Jan. 12, 

1981) (Fifth Amendment protection extends to all persons within the United States

but attaches only when the federal government seeks to deny a liberty or property 

interest).

9

 Pittman alleges neither that any of the defendants are federal actors nor 

that the federal government in any way denied him a liberty or property interest. 

 9 The Eleventh Circuit adopted as binding precedent all decisions handed down by the 

former Fifth Circuit prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1207 

(11th Cir. 1981).

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Furthermore, Pittman offers no explanation of why the Fifth Amendment should 

apply to the named defendants. 

To the contrary, Pittman argues only that Section 1983 liability applies since 

Campbell was employed as a police officer by a state law-enforcement agency. In 

this regard, Pittman discusses the private defendants’ alleged connection with 

Campbell, an agent of the state. And, he asserts, based on the private defendants’ 

participation with Campbell, the defendants were acting under “color of state law” 

for § 1983 purposes. Because Pittman failed to allege any deprivation of liberty or 

property by a federal actor, the district court correctly dismissed Count Two with 

prejudice.10 

D. Amendment of the Amended Complaint

Finally, while we recognize that under certain circumstances plaintiffs 

should be permitted an opportunity to amend their complaint, those circumstances 

do not exist here. In the district court, Pittman never made a motion to amend his 

complaint, nor did he ever suggest how he could cure the pleading deficiencies in a 

subsequent complaint. At most, in responding to the defendants’ motions to 

dismiss, Pittman merely suggested that re-pleading might be required. Even if 

 10 While Pittman could have perhaps brought a claim for an alleged violation of his 

Fourteenth Amendment rights, he did not set forth such a claim in his Amended Complaint. See 

e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 931–32, 102 S. Ct. 2744, 2750–51 (1982)

(private party's joint participation with a state official in a conspiracy could meet state action 

required to show a violation of Fourteenth Amendment rights). And, as discussed more fully 

infra, because Pittman never sought to amend his complaint to assert such a claim, the district 

court properly dismissed Count Two with prejudice. 

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these statements could be construed as requests to amend the complaint, Pittman 

failed to set forth how he would amend his complaint. 

In Atkins v. McInteer, we explained that if a plaintiff wishes to amend his 

complaint, he “must either attach a copy of the proposed amendment to the motion 

or set forth the substance thereof.” 470 F.3d 1350, 1362 (11th Cir. 2006); see also 

Urquilla–Diaz v. Kaplan Univ., 780 F.3d 1039, 1057 n. 14 (11th Cir. 2015) (“Diaz 

never made a motion to amend his complaint, nor did he ever suggest how he 

could cure his defective complaint in a subsequent pleading. Under our precedent, 

the district court's decision [to dismiss] was not an abuse of discretion.”). And our 

precedent makes clear that merely mentioning the possibility of amendment is not 

tantamount to a request for leave to amend. See Lord Abbett Mun. Income Fund, 

Inc. v. Tyson, 671 F.3d 1203, 1208 (11th Cir. 2012) (per curiam) (“The Fund's 

request for leave to amend appeared in its response to the Defendant's motion to 

dismiss. The Fund failed, however, to attach a copy of this proposed amendment 

or set forth its substance. Therefore, the district court did not err by denying the 

Fund's request.”).

Because Pittman never filed a motion for leave to amend his complaint and 

never presented the district court with a proposed amended complaint curing the 

pleading deficiencies, the district court did not err in dismissing Counts One and 

Two with prejudice. 

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IV.

For the foregoing reasons, we affirm the district court’s dismissal of Counts 

One and Two of the Amended Complaint. Although Pittman may not proceed on 

his Section 1983 claims, he may re-file his state-court claims for malicious 

prosecution and defamation claims in state court.

AFFIRMED.

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