[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-15768

Non-Argument Calendar

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D.C. Docket No. 8:11-cv-02101-VMC-TGW

MARK BRIVIK, 

 Plaintiff - Appellant,

versus

CLAUDIA LAW, 

Officer, 

JOHN MURRAY, 

STEVE MURRAY, 

JOSEPH RUSSO, 

RICHARD ZIMMERMAN, 

RONALD CARR, 

ANDRE PANET-RAYMOND, 

ABRAHAM SMAJOVITS, 

 Defendants - Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

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(October 16, 2013)

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Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

Mark Brivik appeals the district court’s order granting Officer Claudia 

Law’s motion to dismiss for failure to state a claim, as well as the court’s order 

dismissing Brivik’s claims against Steve Murray, Richard Zimmerman, and Ronald 

Carr (collectively, the co-investors).1

 After careful review, we affirm.2

I. BACKGROUND

Brivik and his co-investors bought real estate to develop. According to 

Brivik, the co-investors wanted to back out of the deal because of the economic 

downturn, so they concocted false accusations against Brivik, namely that he had 

misrepresented the existence of an option to purchase a parcel of property adjacent 

to the development when he really only possessed a right of first refusal. The coinvestors met with Officer Claudia Law of the Florida Department of Law 

Enforcement, who he alleged performed a reckless investigation based on the false 

information the co-investors provided. This investigation led to Brivik’s arrest on 

felony charges. He spent 24 days in jail. The charges were later dismissed when 

the State Attorney’s Office declined to prosecute.

Brivik filed suit under 42 U.S.C. § 1983 against Officer Law and the coinvestors, alleging they violated his Fourth Amendment rights by falsely arresting 

 1 The other defendants listed in the caption are not a part of this appeal.

2 Brivik’s attorney’s motion to withdraw as counsel is GRANTED.

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and maliciously prosecuting him. He also alleged state-law claims of false arrest 

and malicious prosecution. Officer Law moved to dismiss the claims against her 

based on qualified and state-law immunity, and the district court granted the 

motion. Brivik then moved for leave to amend his complaint against Officer Law, 

but the district court denied the motion, concluding that amendment would be 

futile.

Brivik subsequently filed an amended complaint naming only the coinvestors, which the district court dismissed for failure to state a claim, reasoning 

that the co-investors were not state actors and therefore could not be liable under 

§ 1983. The district court then declined to exercise supplemental jurisdiction over 

Brivik’s state-law claims.

This is Brivik’s appeal. We first consider the dismissal of the claims against 

Officer Law and then analyze the dismissal of the claims against the co-investors.

II. CLAIMS AGAINST OFFICER LAW

A. QUALIFIED AND STATE-LAW IMMUNITY

Brivik first contends that the district court improperly dismissed his claims 

against Officer Law. He asserts that Officer Law was not entitled to qualified 

immunity because she lacked arguable probable cause to justify Brivik’s arrest. 

“We review a district court’s grant of a motion to dismiss based on qualified 

immunity de novo and accept well-pleaded allegations as true, construing facts in 

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the light most favorable to the plaintiff[].”3 Collier v. Dickinson, 477 F.3d 1306, 

1308 (11th Cir. 2007). We may also consider documents attached to the motion to 

dismiss that are “(1) central to the plaintiff’s claim and (2) undisputed.” Day v. 

Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). To be immune from § 1983 falsearrest and malicious-prosecution claims, an officer need only demonstrate that she 

acted with arguable probable cause. Montoute v. Carr, 114 F.3d 181, 184 (11th 

Cir. 1997). “Arguable probable cause exists where reasonable officers in the same 

circumstances and possessing the same knowledge as the Defendants could have 

believed that probable cause existed to arrest [the] Plaintiff.” Brown v. City of 

Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010) (internal quotation marks 

omitted).

Upon reviewing the complaint and Officer Law’s arrest affidavit attached to 

her motion to dismiss, we hold that the district court properly granted Officer 

Law’s motion to dismiss. Brivik alleged Officer Law performed a reckless 

investigation that ultimately led to his wrongful arrest and incarceration. But this 

conclusory allegation is insufficient to demonstrate that Officer Law lacked 

arguable probable cause, particularly in light of Officer Law’s affidavit in support 

of Brivik’s arrest warrant, which she attached to her motion to dismiss. See 

 3 Steve Murray’s motion to strike the portions of Brivik’s brief that cite to evidence not 

considered below is DENIED. But because the district court disposed of all of Brivik’s claims at 

the motion to dismiss stage, we consider only the pleadings and Officer Law’s arrest affidavit, 

which is both central to Brivik’s claims and referenced in his complaint. See Starship Enters. of 

Atlanta, Inc. v. Coweta Cnty., Ga., 708 F.3d 1243, 1252 n.13 (11th Cir. 2013).

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a court must accept 

as true all of the allegations contained in a complaint is inapplicable to legal 

conclusions.”); see also Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 

2007) (“[W]hen the exhibits [attached to a pleading] contradict the general and 

conclusory allegations of the pleading, the exhibits govern.”). Although the Fourth 

Amendment “prohibits a police officer from knowingly making false statements in 

an arrest affidavit about the probable cause for an arrest,” Holmes v. Kucynda, 321 

F.3d 1069, 1084 (11th Cir. 2003) (internal quotation marks omitted), Brivik 

pleaded no facts indicating that Officer Law knew statements in the affidavit she 

filed to procure Brivik’s arrest were false. Indeed, the affidavit reveals that Officer 

Law conducted an independent investigation and based her decision to pursue 

Brivik’s arrest on sworn statements from the co-investors indicating that Brivik 

falsely represented he had an option to purchase a piece of property they deemed 

critical to the investment’s success. She also consulted with an attorney familiar 

with securities law who indicated that, in his opinion, the investment Brivik 

offered the co-investors qualified as a security under Florida law that was required 

to be registered. And Officer Law’s investigation revealed Brivik had not 

registered it. From this evidence, a reasonable officer could have concluded that 

Brivik violated Fla. Stat. § 517.07(1), which makes it unlawful “for any person to 

sell or offer to sell a security . . . unless the security is exempt . . . or is registered.” 

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Hence, Officer Law had arguable probable cause to arrest Brivik, and the district 

court properly granted her motion to dismiss the § 1983 claims on qualified 

immunity grounds. See Montoute, 114 F.3d at 184.

Brivik further argues that the district court improperly concluded that 

Officer Law was immune under Florida law. But in Florida, police officers are 

immune from suit unless they “acted in bad faith or with malicious purpose or in a 

manner exhibiting wanton and willful disregard of human rights, safety, or 

property.” Fla. Stat. § 768.28(9)(a). Brivik’s allegation that Officer Law acted

maliciously and in bad faith is conclusory and therefore insufficient to survive a 

motion to dismiss. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, do not 

suffice.”).

B. MOTION FOR LEAVE TO AMEND THE COMPLAINT

Brivik also contends that the district court improperly denied his motion for 

leave to amend his allegations against Officer Law. Generally, we review de novo

the district court’s denial of a motion to amend as futile. Hollywood Mobile 

Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1264 (11th Cir. 2011). We 

do not have occasion to consider whether Brivik’s amendment would be futile,

however, because he did not move for leave to amend until after the district court 

granted Officer Law’s motion to dismiss and after the deadline to do so in the 

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district court’s scheduling order. And he has not argued, either in this court or 

before the district court, that he had good cause for his failure to move for leave to 

amend earlier. See S. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241 

(11th Cir. 2009) (“A plaintiff seeking leave to amend [his] complaint after the 

deadline designated in a scheduling order must demonstrate ‘good cause’ under 

Fed. R. Civ. P. 16(b).”). That is especially problematic because he was on notice 

of the deficiencies in his complaint before the deadline expired as a result of 

Officer Law’s motion to dismiss. Crucially, Brivik offers no explanation as to why 

the newly-pleaded facts were unavailable to him prior to the scheduling-order 

deadline. See Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998) 

(noting that the “good cause standard precludes modification unless the schedule 

cannot be met despite the diligence of the party seeking the extension” (internal 

quotation marks omitted)). The district court therefore properly denied Brivik’s 

motion for leave to amend.

III. CLAIMS AGAINST THE CO-INVESTORS

Brivik next contends that the district court erred in dismissing his § 1983 

claims against the co-investors. Brivik’s amended complaint against the coinvestors alleged that they “engaged in joint action” and “in a reckless campaign” 

to arrest and prosecute Brivik. Brivik also alleged, in the alternative, that the coinvestors and Law conspired, acted in concert, or reached an understanding to 

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generate false accusations against Brivik. The district court dismissed the 

complaint against the co-investors, concluding that Brivik failed to state a claim 

upon which relief may be granted because he did not plead facts sufficient to show 

that the co-investors were state actors. We review this conclusion de novo. 

Thompson v. RelationServe Media, Inc., 610 F.3d 628, 633 (11th Cir. 2010).

“To obtain relief under § 1983, [the plaintiff] must show that he was 

deprived of a federal right by a person acting under color of state law.” Patrick v. 

Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). Private parties are only 

rarely deemed to be state actors under § 1983, and we will find that a private party 

is a state actor only if one of three conditions is met:

(1) the State has coerced or at least significantly encouraged the 

action alleged to violate the Constitution . . . ; (2) the private 

parties performed a public function that was traditionally the 

exclusive prerogative of the State . . . ; 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 . . . .

Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001) 

(alterations and internal quotation marks omitted). Brivik concedes that only the 

third circumstance might be implicated in this case. To establish that a private 

party is a state actor in this scenario, “the governmental body and private party 

must be intertwined in a symbiotic relationship [that] involve[s] the specific 

conduct of which the plaintiff complains.” Focus on the Family v. Pinellas 

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Suncoast Transit Auth., 344 F.3d 1263, 1278 (11th Cir. 2003) (internal quotation 

marks omitted). 

On appeal, Brivik contends that he sufficiently pleaded joint action. But he 

points to nothing in his complaint to indicate that the co-investors and Officer Law 

acted together to falsify facts leading to Brivik’s arrest. Rather, he argues only that 

the co-investors “knowingly and deliberately falsified information during their 

meetings with Claudia Law.” This is insufficient to show that the co-investors

were state actors under § 1983. See id.; see also Nat’l Broad. Co., Inc. v. 

Commc’ns Workers of Am., 860 F.2d 1022, 1025 n.4 (11th Cir. 1988) (“[P]rivate 

conduct is fairly attributable [to the State] only when the state has had some 

affirmative role . . . in the particular conduct underlying a claimant’s civil rights 

grievance.” (emphasis added) (internal quotation marks omitted)). Hence, the 

district court properly dismissed Brivik’s claims against the co-investors.

4

IV. CONCLUSION

For the above reasons, we find no error in the district court’s dismissal of 

Brivik’s claims against both Officer Law and the co-investors. The judgment of 

the district court is

 4 Brivik does not argue that, if the district court properly dismissed his § 1983 claims, it abused 

its discretion by declining to exercise supplemental jurisdiction over his state-law claims. He has 

therefore abandoned this argument. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 

1330 (11th Cir. 2004) (“[A] legal claim or argument that has not been briefed before the court is 

deemed abandoned and its merits will not be addressed.”); see also 28 U.S.C. § 1367(c)(3)

(providing that a district court may decline to exercise supplemental jurisdiction over state-law 

claims where it has “dismissed all claims over which it has original jurisdiction”).

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AFFIRMED.

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