USCA11 Case: 21-11436 Date Filed: 05/02/2022 Page: 1 of 15
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11436
Non-Argument Calendar
____________________
DR. STEVEN RHODES,
Plaintiff-Appellant,
versus
DETECTIVE PAUL ROBBINS,
in his individual capacity,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:18-cv-00673-MMH-JBT
____________________
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2 Opinion of the Court 21-11436
Before GRANT, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Steven Rhodes was arrested on insurance fraud charges
eight years ago, but the charges were dropped after he completed
a pretrial intervention program. Rhodes afterward sued Paul
Robbins—the detective who signed the affidavit for his arrest
warrant—under 42 U.S.C. § 1983, alleging malicious prosecution.
The district court dismissed Rhodes’s claim in part and later
rendered summary judgment for Robbins. Because Robbins is
protected by qualified immunity, we affirm.
I.
Rhodes is a chiropractor licensed to practice in Florida. In
early 2014, Robbins—a Florida detective working in the
department of insurance fraud—began investigating complaints
alleging fraudulent insurance billing by Rhodes. After interviewing
seven patients, Robbins determined that Rhodes had submitted
bills to insurance companies for services that “should not have
been performed” or that “were not rendered.” Robbins signed an
affidavit to that effect and brought it to a judge, who issued an
arrest warrant for Rhodes.
Rhodes was arrested on seven counts of false and fraudulent
insurance claims and a single count of engaging in a scheme to
defraud. See Fla. Stat. §§ 817.234(1)(a)(1) (2014), 817.034(4)(a)(3)
(2014). But rather than bringing his case to trial, the state referred
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21-11436 Opinion of the Court 3
it to a felony pretrial intervention program. Once Rhodes
completed the program—which required performing community
service, reimbursing the state’s investigation costs, and paying
restitution to two insurance companies—all charges against him
were dropped.
That might have been the end of the story. But three years
later, Rhodes filed suit against Robbins under 42 U.S.C. § 1983,
asserting a malicious-prosecution claim based on the violation of
his “Fourth Amendment right to be free from unreasonable
seizures.” The district court disposed of the case in two stages.
First, it dismissed a portion of Rhodes’s suit pursuant to Rule
12(b)(6), concluding that Robbins was entitled to qualified
immunity on four of the charges he had brought against Rhodes.
Then, after a period of discovery, the district court entered
summary judgment in favor of Robbins on the remaining four
charges—again on the grounds of qualified immunity, but this time
considering evidence produced by Rhodes. Rhodes appeals both
decisions.
II.
To prevail on his § 1983 malicious-prosecution claim,
Rhodes must “prove both a violation of his Fourth Amendment
right to be free of unreasonable seizures and the elements of the
common law tort of malicious prosecution.” Williams v. Aguirre,
965 F.3d 1147, 1157 (11th Cir. 2020) (quotations and brackets
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4 Opinion of the Court 21-11436
omitted). 1 More specifically, a plaintiff challenging an arrest
pursuant to a warrant in a malicious prosecution action must
establish both that “the legal process justifying his seizure was
constitutionally infirm” and that “his seizure would not otherwise
be justified without legal process.” Id. at 1165. Showing that an
officer “intentionally or recklessly made misstatements or
omissions necessary” to support an arrest warrant satisfies the first
prong of this inquiry. Id.
Robbins raises qualified immunity as a defense. Qualified
immunity “shields public officials from liability for civil damages
when their conduct does not violate a constitutional right that was
clearly established at the time of the challenged action.” Id. at 1156
(quotation omitted). It is designed to protect “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) (quotation
omitted). An officer seeking qualified immunity must first
demonstrate that she was acting within the scope of her
discretionary authority when the disputed acts occurred. Id. The
burden then shifts to the plaintiff, who must prove both that the
1 On appeal, both parties cite to cases involving false-arrest § 1983 claims rather
than to Williams v. Aguirre, the case governing the analysis of § 1983
malicious-prosecution claims in this Circuit. See 965 F.3d 1147, 1156–70 (11th
Cir. 2020). Because claims of malicious prosecution involve “a different kind
of seizure” than those of false arrest, we rely on Williams rather than
analogizing to false-arrest cases. Id. at 1158; see also id. at 1164 (abrogating a
past case “to the extent it held that the standards for malicious prosecution and
false arrest are coextensive”).
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21-11436 Opinion of the Court 5
officer “violated a federal statutory or constitutional right” and that
the unlawfulness of the officer’s conduct was “clearly established
at the time.” Williams, 965 F.3d at 1156 (quotation omitted).
Rhodes does not dispute that Robbins acted within the scope
of his discretionary authority, so we confine our analysis to
whether Rhodes has established a violation of clearly established
law. Rhodes alleges that Robbins “knowingly and deliberately, or
with a reckless disregard of the truth, made false statements or
material omissions in his application for the warrant for Plaintiff’s
arrest” and that “such statements or omissions were necessary to
the finding of probable cause to issue said warrant.” If Rhodes were
correct, that would be a violation of clearly established law and
qualified immunity would not shield Robbins from liability. But
Rhodes does not persuade us.
III.
We begin by considering the four charges that the district
court disposed of at the motion to dismiss stage. We review a
district court’s order granting a motion to dismiss de novo,
accepting the factual allegations in the complaint as true and
construing them in the plaintiff’s favor. Doe #1 v. Red Roof Inns,
Inc., 21 F.4th 714, 723 (11th Cir. 2021). To survive a motion to
dismiss, however, a plaintiff must provide “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
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statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
The district court concluded that even if all of the allegations
in Rhodes’s complaint were true, four of the eight charges Robbins
had brought against Rhodes could not support a claim of malicious
prosecution. This Court’s analysis in Williams v. Aguirre guides
our review of that decision. We first ask whether Robbins made
an intentional (or reckless) false statement or material omission in
the warrant affidavit for each charge brought against Rhodes. At
the motion to dismiss stage, we accept allegations in the complaint
regarding such falsehoods or omissions as true. We then consider
whether, after the alleged falsehoods and omissions are rectified,
the affidavit would be sufficient to establish probable cause for each
of the charges. Williams, 965 F.3d at 1165.
For three of the four charges dismissed by the district court,
Rhodes alleges that Robbins omitted material information from
the warrant affidavit. Rhodes first attacks the charge arising from
his treatment of patient D.B. Rhodes explains that D.B. “indicated
that she had been pregnant since May of 2013, so her insurance
company should not have been billed for a particular treatment
which would have ceased being administered to her upon advising
Plaintiff of her pregnancy.” He alleges that Robbins possessed
copies of D.B.’s medical records, which show that she did not tell
Rhodes of her pregnancy until August 2013—and that in any event,
D.B.’s child was born in April 2014, making it impossible for her to
be pregnant in May 2013.
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Changing the affidavit to reflect that Rhodes was not
notified of D.B.’s pregnancy until August 2013 does not change the
fact that Robbins had probable cause to bring the charge against
Rhodes. Even if the pregnancy date is corrected, the only result is
that there are three fewer months in which D.B. allegedly did not
receive one type of treatment (electrical stimulation). The affidavit
would still state that she received no such treatment for a period of
eight months.2 And, of course, the affidavit also states that her
insurance company was billed without authorization for three
other kinds of treatment. That is sufficient to establish probable
cause.
Rhodes next disputes the charge related to his treatment of
O.V. Here, he alleges two material omissions made by Robbins:
first, that O.V. initially reported that she had been billed over
$56,000 by Rhodes, before admitting that it was only $2,734; and
second, that after claiming that Rhodes had failed to provide
certain services, she told another doctor that “she was receiving the
treatments at issue on a regular basis.”
These omissions do not render the warrant affidavit
insufficient to support probable cause. Rhodes does not allege that
the dollar amount on the warrant itself is incorrect, and earlier
2 In his initial brief on appeal, Rhodes argues that in August 2013, D.B.
informed him that she was pregnant and “electrical stimulation treatment and
billing ceased” at that time. This assertion appears nowhere in the third
amended complaint.
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8 Opinion of the Court 21-11436
estimations (even if inaccurate) do not change the warrant’s
substantive allegations based on O.V.’s statements—that she “had
expressed concern several times when signing paper work for
services that were not rendered,” that Rhodes and his staff
“personally assured her that the paper work would be submitted
correctly to the insurance company, but it was not,” and that
Rhodes billed O.V.’s insurance company without authorization.
Nor does the fact that O.V. told another doctor that she was
receiving the treatments have any effect on the affidavit’s efficacy.
Rhodes’s complaint does not allege that Rhodes was the doctor
providing O.V. “the treatments at issue on a regular basis.” O.V.’s
statement that she received treatment elsewhere is irrelevant
unless she received that treatment from Rhodes—an assumption
we have no reason to make.
Rhodes also challenges the insurance fraud charge based on
his treatment of B.L. The affidavit states that B.L.’s insurance
received unauthorized bills for “Ultrasound Therapy, Traction
Therapy and Manual Therapy,” and that Rhodes told B.L. that he
had billed her insurance company without first giving her the
treatment. In response, Rhodes alleges that Robbins omitted from
his affidavit paperwork signed by B.L. “attesting the services ‘were
actually rendered.’”
Once again, correcting this omission does not affect the
affidavit’s validity. The affidavit describes Rhodes as explaining to
B.L. that he had been billing her insurance company without
providing treatment, but that he planned to provide that treatment
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21-11436 Opinion of the Court 9
in the future—this time without billing the insurance company—
in order to make up for it. B.L. may have signed the alleged
paperwork later, once she received the promised treatment after
the unauthorized billing (consistent with Rhodes’s statement
described in the affidavit). Or, similar to O.V.’s experience, she
may simply have “sign[ed] paper work for services that were not
rendered.” B.L.’s signature does not negate her later reports of
unauthorized billing.
The affidavit establishes probable cause for the charges
based on Rhodes’s treatment of D.B., O.V., and B.L. even in spite
of its alleged omissions. The district court thus correctly granted
Robbins qualified immunity at the motion to dismiss stage to the
extent that Rhodes’s suit relies on those charges.
The fourth charge dismissed by the district court is
dependent on the first three—one count of engaging in a scheme
to defraud. This offense is defined by Florida law as “a systematic,
ongoing course of conduct with intent to defraud one or more
persons, or with intent to obtain property from one or more
persons by false or fraudulent pretenses, representations, or
promises or willful misrepresentations of a future act.” Fla. Stat.
§ 817.034(3)(d) (2014). As shown above, even when Rhodes’s
allegations are accepted as true, Robbins had probable cause to
charge Rhodes with (at least) three counts of making a false and
fraudulent insurance claim. That alone establishes probable cause
for this charge. Because he had probable cause to charge Rhodes
with three insurance fraud offenses, Robbins had a sufficient basis
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to conclude that Rhodes engaged in a systematic, ongoing attempt
to defraud insurance companies by billing them without
authorization for treatment that was not received. The district
court thus properly granted qualified immunity to Robbins for this
charge at the motion to dismiss stage.
In an attempt to escape this outcome, Rhodes alleges that
Robbins made two errors of law that—in his view—invalidate the
warrant affidavit and remove any probable cause for the scheme to
defraud charge. Qualified immunity protects officers who commit
reasonable errors of law. Pearson v. Callahan, 555 U.S. 223, 231
(2009). So to prevail, Rhodes must show not only that Robbins
committed an error of law, but that the error was unreasonable.
The first alleged error relates to the affidavit’s assertion that
Rhodes’s clinic was billing for therapy provided by “a massage
therapist with an expired massage license.” Rhodes argues that
under Florida law, “a chiropractic physician can bill for such
manual physical therapy when it is performed by medical assistants
incidental to the practice of the physician,” and that Robbins’s
“claim that Plaintiff violated the law by billing for manual therapy
was incorrect.”
We find no legal authority to support Rhodes’s argument
that, as a matter of Florida law, doctors may bill insurance
companies for manual therapy provided by massage therapists
with expired licenses. Rhodes points to State Farm Mutual
Automobile, Insurance Co. v. Universal Medical Center of South
Florida, Inc. See 881 So. 2d 557 (Fla. Dist. Ct. App. 2004). But as
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the district court explained, State Farm answers “a narrow certified
question about medical assistants” and “sheds no light on whether
‘manual therapy’ performed by an unlicensed massage therapist
can be billed” in the way Rhodes argues. Rhodes offers no other
cases to support his characterization of Florida law. We thus
cannot conclude that Robbins made a mistake of law here.
The second alleged mistake of law relates to the affidavit’s
statement that “Rhodes was submitting his notes for billing which
indicated more units of treatment than what was actually
provided.” Rhodes’s billing company told Robbins that two units
of massage involved “hands on treatment for thirty minutes,” not
including dressing or undressing. But Rhodes explains that the
federal Medicare manual applies a less stringent standard: if a
“manual therapy session lasts at least 23 minutes, then a provider
may bill for two units.” Therefore, Rhodes alleges, Robbins (and
some of the patients he interviewed) were mistaken in believing
that billing less than 30 minutes of therapy as two units was
problematic.
Rhodes fails to show that this alleged mistake of law was
unreasonable. “Generally, an officer is entitled to rely on a victim’s
criminal complaint as support for probable cause.” Rankin v.
Evans, 133 F.3d 1425, 1441 (11th Cir. 1998). Robbins was told by
several patients that unauthorized bills had been submitted to their
insurance companies. And even if some of these patients may not
have fully understood the billing system, Robbins was reasonably
entitled to rely on their consistent testimony (which also
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referenced billings for treatments that were not manual therapy at
all—and therefore not subject to the rule explained by Rhodes).
In short, Robbins had probable cause to charge Rhodes with
engaging in a scheme to defraud, and he did not make an
unreasonable mistake of law. We thus conclude that the district
court correctly dismissed Rhodes’s claim to the extent it was based
on the scheme to defraud charge.
IV.
We next consider the charges against Rhodes rejected at
summary judgment. We review de novo a district court’s grant of
summary judgment, “viewing all facts and reasonable inferences in
the light most favorable to the nonmoving party.” Hill v. Cundiff,
797 F.3d 948, 967 (11th Cir. 2015). Summary judgment is
appropriate when there is no genuine dispute of material fact and
the record entitles the movant to judgment as a matter of law. See
Fed. R. Civ. P. 56(a). We reverse a grant of summary judgment “if
the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
Robbins once again asserts the defense of qualified
immunity at summary judgment. Our Williams analysis remains
the same, but at the summary judgment stage we must consider
the facts in the record rather than accepting the complaint’s
allegations as true.
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Rhodes argues that the record contains genuine disputes of
material fact for the four counts that survived dismissal. Pointing
to statements later signed by the patients whose treatment
allegedly gave rise to those counts, he contends that they “directly
refute[] and conflict[] with the contents” of the warrant affidavit
such that it cannot establish probable cause once those portions
conflicting with the statements are stricken (the second step under
Williams).
Even assuming that Rhodes’s proffered evidence meets the
evidentiary requirements of Rule 56, we are not persuaded. 3 We
consider each of the four remaining counts of false and fraudulent
insurance claims—those relating to patients R.G., M.S., H.C., and
A.N.—in turn.
To begin, the signed statements offered by patients R.G. and
M.S, even when accepted as true and construed in Rhodes’s favor,
do not affect the affidavit’s validity. 4 Rhodes argues that each
patient’s statement demonstrates that Robbins “knowingly
included falsities in his warrant affidavit.” To begin, Robbins could
3 As the district court explained, three of the four statements on which Rhodes
relies are signed and notarized, but unsworn; they do not qualify as affidavits
or declarations. Like the district court, we assume without deciding that they
are sufficient evidence for consideration at summary judgment.
4 M.S. was treated alongside H.S., her daughter, and both are referred to in the
affidavit in support of the same charge of making false and fraudulent
insurance claims. Rhodes offers no evidence regarding H.S., and so we
consider only the statements made by M.S. relating to that charge.
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14 Opinion of the Court 21-11436
not have known when he relied on his interviews with R.G. and
M.S. that their stories would later change. What’s more, both
statements simply assert that the patients “did receive” the medical
treatment for which their insurance companies were billed—they
do not dispute that R.G. and M.S. told Robbins that their insurance
companies had been fraudulently billed. We therefore conclude
that Robbins had probable cause to bring the charges based on the
treatment of R.G. and M.S.
Patient H.C. signed a more substantial statement explaining
that he had not fully understood the situation when he was
interviewed by Robbins. But once again, the statement goes to the
merits of the state’s fraud case against Rhodes, not to whether
Robbins had probable cause when he signed the affidavit. Like
R.G. and M.S., H.C. states clearly that his previous allegation of
fraudulent billing was unfounded. But also like those other
patients, he does not dispute that he told Robbins otherwise before
Robbins prepared the warrant affidavit. Indeed, H.C.’s statement
indicates that he changed his view only after previously unknown
information was explained to him.
Finally, Rhodes offers no evidence to support his allegation
that A.N. “flatly denied” the facts that Robbins claimed to have
learned from him. While we construe evidence in the light most
favorable to the nonmoving party at summary judgment, here
there is no evidence to construe. We cannot conclude that Robbins
lacked probable cause for the fraud charge arising out of A.N.’s
treatment when the record offers no support for that assertion.
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Robbins had probable cause to charge Rhodes with each of
the four counts remaining at summary judgment. We therefore
conclude that he is protected by qualified immunity for each of
those four charges.
* * *
We AFFIRM the district court’s orders dismissing Rhodes’s
claim in part and rendering summary judgment in favor of
Robbins.