Lohn Harris v. Leonard DeBellis, et al

Filing

Opinion issued by court as to Appellant Lohn Harris. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-14332

Date Filed: 08/10/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14332
Non-Argument Calendar
________________________
D.C. Docket No. 2:14-cv-14342-DMM

LOHN HARRIS,
Plaintiff-Appellant,
versus
LEONARD DEBELLIS,
sued in his individual capacity,
WILLIAM D. SNYDER,
Defendants-Appellees,
MARTIN COUNTY SHERIFFS OFFICE,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 10, 2016)

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Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Lohn Harris appeals the district court’s order granting summary judgment in
favor of defendants Leonard DeBellis and William Snyder on Harris’s claims for
unlawful seizure and malicious prosecution under 28 U.S.C. § 1983 and for false
arrest and malicious prosecution under Florida state law. Harris contends the
district court erred in holding that DeBellis 1 was entitled to qualified immunity as
to the § 1983 claims and to sovereign immunity as to the Florida state law claims.
According to Harris, DeBellis is not entitled to qualified immunity because
DeBellis lacked arguable probable cause to believe Harris had committed a crime
and because DeBellis completed a criminal complaint affidavit attesting to untruths
that DeBellis either knew were untrue or would have known to be untrue had he
not recklessly disregarded the truth. For the same reasons, Harris contends
DeBellis acted with malicious purpose and is therefore not entitled to sovereign
immunity under Section 768.28(9)(a), Florida Statutes. After review, 2 we affirm.
Both of Harris’s claims under § 1983 require Harris to ultimately prove that
DeBellis lacked probable cause to procure Harris’s arrest. See Kingsland v. City of
Miami, 382 F.3d 1220, 1234–35 (11th Cir. 2004); Rankin v. Evans, 133 F.3d 1425,
1

Harris has elected to abandon his appeal as to Snyder.

2

We review de novo a district court’s order granting summary judgment and draw all
reasonable inferences in the light most favorable to the non-moving party. Owen v. I.C. Sys.,
Inc., 629 F.3d 1263, 1270 (11th Cir. 2011).
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1436 (11th Cir. 1998). Because DeBellis asserts qualified immunity, however, we
may first consider whether DeBellis violated clearly established law. See Ashcroft
v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 2080 (2011). Under the clearly
established law prong of qualified immunity analysis, DeBellis is entitled to
summary judgment unless Harris can identify a genuine issue of fact regarding
whether DeBellis had arguable probable cause to procure Harris’s arrest. See
Carter v. Butts Cty., Ga., 821 F.3d 1310, 1319 (11th Cir. 2016); Case v. Eslinger,
555 F.3d 1317, 1327 (11th Cir. 2009). “Arguable probable cause exists where
reasonable officers in the same circumstances and possessing the same knowledge
as the Defendant could have believed that probable cause existed to arrest.” Case,
555 F.3d at 1327 (quotation marks omitted); see also Hunter v. Bryant, 502 U.S.
224, 227, 112 S. Ct. 534, 536 (1991) (“Even law enforcement officials who
reasonably but mistakenly conclude that probable cause is present are entitled to
immunity.” (quotation marks omitted)). Thus, “[t]he qualified immunity standard
gives ample room for mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law.” Hunter, 502 U.S. at 229,
112 S. Ct. at 537 (quotation marks omitted).
In Florida, a person commits a third-degree felony if he or she seeks
controlled substances from a practitioner while withholding from the practitioner
that he or she has received a controlled substance or a prescription for a controlled
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substance from a different practitioner within the preceding 30 days. See Fla. Stat.
§§ 893.13(7)(a)(8), 893.13(7)(d). Thus, the elements of doctor-shopping in Florida
are (1) receiving a controlled substance or prescription for a controlled substance
from a practitioner; (2) then, within 30 days; (3) seeking controlled substances
from a different practitioner; and (4) failing to inform the different practitioner
about (1). Here, DeBellis collected evidence tending to establish each element of
an offense for doctor shopping and therefore had at least arguable probable cause
supporting his procurement of Harris’s arrest in May 2013. See Devenpeck v.
Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 593 (2004) (“Whether probable cause
exists depends upon the reasonable conclusion to be drawn from the facts known to
the arresting officer at the time of the arrest.”); Rankin, 133 F.3d at 1435
(“Probable cause requires more than mere suspicion, but does not require
convincing proof.” (quotation marks omitted)).
The parties dispute how DeBellis identified Harris as a possible suspect, but
it is undisputed that on December 11, 2012 DeBellis queried a Florida Department
of Health database of controlled-substance prescriptions. The database indicated
Harris filled 32 controlled-substance prescriptions between February 8 and
November 26, 2012. Among the controlled-substance prescriptions, the database
indicated that, within a seven-day period, Harris filled three prescriptions from two
different prescribing doctors. DeBellis next procured the Park Pharmacy patient
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profile, which corroborated the database information regarding the latter two
prescriptions (the first prescription was filled elsewhere). Because these sources
together indicated that Harris sought and obtained controlled substances from two
practitioners within a week, DeBellis had evidence tending to establish elements
(1), (2), and (3) above. DeBellis also requested and obtained a prescription
affidavit from Dr. Murphy, the doctor listed in the pharmacy profile as the
prescribing doctor for the first and third prescriptions. Dr. Murphy stated that
Harris had not informed him that Harris was already receiving narcotic medication
and that Harris had signed a pain management agreement. Because Dr. Murphy’s
affidavit indicates Harris failed to notify Dr. Murphy that he was receiving
controlled substances from a different practitioner, DeBellis had evidence tending
to establish element (4) above.
Were there no further evidence, DeBellis would certainly have had actual
probable cause to procure Harris’s arrest. See Rankin, 133 F.3d at 1435. But
DeBellis had also subpoenaed Harris’s medical records from Dr. Talati (the doctor
listed in the pharmacy profile as the prescribing doctor for the second prescription).
Harris’s medical records did not indicate that Harris had seen Dr. Talati during the
seven-day period in question and did not indicate that Dr. Talati had prescribed
controlled substances. While the records did not corroborate everything in the
Park Pharmacy patient profile, they did not affirmatively contradict the profile.
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One could infer from the absence of references to controlled substances that the
medical records were incomplete, that Harris forged a prescription, or that the Park
Pharmacy patient profile was inaccurate. We do not know what DeBellis actually
inferred from the medical records (he claims he thought they were incomplete), but
we now know Park Pharmacy erred when entering records into its computer
system, and all three of Harris’s prescriptions for controlled substances were in fact
prescribed by Dr. Murphy. Upon discovery of the error, the state attorney filed a
nolle prosequi and Harris was freed after over four months in jail.
Despite the uncertainty Harris’s medical records from Dr. Talati cast over
what otherwise appeared to be clear evidence of each element of a doctor-shopping
offense, reasonable officers could differ as to whether the records so undermined
the other evidence as to defeat probable cause. See Gerstein v. Pugh, 420 U.S.
103, 121, 95 S. Ct. 854, 867 (1975) (The probable cause determination “does not
require the fine resolution of conflicting evidence that a reasonable-doubt or even a
preponderance standard demands.”); Dahl v. Holley, 312 F.3d 1228, 1234 (11th
Cir. 2002) (“[A]rresting officers, in deciding whether probable cause exists, are not
required to sift through conflicting evidence or resolve issues of credibility, so long
as the totality of the circumstances present a sufficient basis for believing that an
offense has been committed.”). Therefore, DeBellis had arguable probable cause
to procure Harris’s arrest. In finding arguable probable cause, we do not hold that
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DeBellis conducted a model investigation. With the benefit of hindsight, we see
opportunities for DeBellis to check his assumptions and gather information that
would have exonerated Harris of the doctor-shopping charges. But the qualified
immunity standard “gives ample room for mistaken judgments,” Hunter, 502 U.S.
at 229, 112 S. Ct. at 537 (quotation marks omitted), and “arguable probable cause”
does not mean “certainly guilty,” see Scarbrough v. Myles, 245 F.3d 1299, 1302–
03 (11th Cir. 2001) (“Arguable probable cause does not require an arresting officer
to prove every element of a crime or to obtain a confession before making an
arrest, which would negate the concept of probable cause and transform arresting
officers into prosecutors.”).
For many of the same reasons discussed above, we reject Harris’s argument
that DeBellis completed the criminal complaint affidavit with knowledge of or
reckless indifference to its falsity. DeBellis may have been negligent in conflating
the dates Harris filled his prescriptions with the dates Harris saw his practitioners
and in failing to follow-up with Dr. Talati regarding the information that did not
appear in Harris’s medical records, but Harris fails to provide evidence sufficient
to permit an inference that DeBellis either knew his representations were false or
was recklessly indifferent to the falsity of his representations. See United States v.
Martin, 615 F.2d 318, 329 (5th Cir. 1980) (“[A] proven misstatement can vitiate an
affidavit only if it is established that the misstatement was the product of deliberate
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falsehood or of reckless disregard for the truth. Allegations of negligence or
innocent mistake are insufficient.” (quotation marks and alteration omitted)).3
Thus, the district court correctly granted summary judgment in favor of DeBellis
on qualified immunity grounds.
As to Harris’s state law claims, we agree with the district court that
sovereign immunity applies. Under Section 768.28(9)(a), an officer, employee, or
agent of the state may not be held personally liable for conduct in the scope of his
or her employment or function unless he or she “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). DeBellis was clearly
operating within the scope of his employment. Therefore, for Harris’s state law
claims to proceed, Harris must provide evidence of bad faith, malicious purpose, or
wanton and willful disregard. See id. DeBellis’s failure to inquire further into the
reason Harris’s medical records from Dr. Talati did not match the Park Pharmacy
patient profile does not suffice, and Harris provides no other evidence to support a
finding of bad faith, malicious purpose, or wanton and willful disregard. See
Willingham v. City of Orlando, 929 So. 2d 43, 48 (Fla. 5th DCA 2006) (holding
that “the benefit of [Section 768.28(9)(a)] immunity is effectively lost if the person

3

In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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entitled to assert it is required to go to trial” and a court should therefore grant
summary judgment if “no reasonable jury could have concluded” that the
defendant acted with malice, in bad faith, or with wanton and willful disregard).
AFFIRMED.

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