134 F.3d 809 (6th Cir. 1998), 96-3464, Mays v. City of Dayton

Docket Nº:96-3464.
Citation:134 F.3d 809
Party Name:Dewey O. MAYS, Jr., M.D., et al., Plaintiffs-Appellees, v. CITY OF DAYTON, et al., Defendants-Appellants.
Case Date:January 23, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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134 F.3d 809 (6th Cir. 1998)

Dewey O. MAYS, Jr., M.D., et al., Plaintiffs-Appellees,

v.

CITY OF DAYTON, et al., Defendants-Appellants.

No. 96-3464.

United States Court of Appeals, Sixth Circuit

January 23, 1998

Argued June 3, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied March 6, 1998.

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[Copyrighted Material Omitted]

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Charles A. Smiley, Jr. (argued and briefed), Charles Smiley & Associates, Dayton, OH, for Plaintiffs-Appellees.

Jane M. Lynch (briefed), Neil F. Freund (argued), Lisa A. Hesse (briefed), Freund, Freeze & Arnold, Dayton, OH, for Defendants-Appellants.

Before: SILER and COLE, Circuit Judges, and WISEMAN, District Judge. [*]

WISEMAN, D.J., delivered the opinion of the court, in which SILER, J., joined. COLE, J. (p. 817), delivered a separate concurring opinion.

OPINION

WISEMAN, District Judge.

Appellant, Gary Gabringer, appeals the district court's denial of his summary judgment motion based upon qualified immunity and a failure to find probable cause for a search warrant Gabringer executed. For the reasons stated below, we REVERSE the judgment of the district court.

I.

This appeal stems from a search of the place of business of Dr. Dewey O. Mays, Jr. (Dr. Mays). 1 Dr. Mays practices medicine from an office at 2114 Salem Street in Dayton, Ohio. Dr. Mays treats a substantial number of Medicare and workman's compensation benefit recipients. Claims for payment for services rendered to Medicare and workman's compensation patients must be submitted in accordance with U.S. Department of Health and Human Services regulations. Dr. Mays employs his wife, Ruby Mays, and his sister-in-law, Doris Jenkins, in his medical office. In 1989, Dewey O. Mays, III ("Mays III"), Dr. Mays' son, began assisting his father in the practice. Although Mays III had not obtained a license to practice medicine in Ohio, he was licensed to practice medicine in Tennessee and Kentucky.

In February 1989, Detective Gary Gabringer of the Dayton Police Department received information that Mays III was trafficking in pills and drug prescriptions. Detective Gabringer corroborated this information through an undercover investigation during which Detective Gabringer received pills from Mays III in return for stereo equipment and observed Mays III writing prescriptions on Dr. Mays' prescription pads. During the course of the investigation, Detective Gabringer became aware of a simultaneous federal investigation of Dr. Mays for Medicare fraud under the direction of Agent Craig Morton of the U.S. Department of Health and Human Services.

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Mays III was arrested on December 6, 1989, for aggravated drug trafficking, schedule II cocaine. Subsequent to his arrest, Mays III told police that his father routinely wrote prescriptions for patients seen only by Mays III, that some of these patients were Welfare/Medicare patients, and that Medicare was sometimes billed for office visits when patients received prescription renewals without being seen by Dr. Mays. On December 8, 1989, pursuant to a warrant, police searched 2114 Salem Street and seized the files of thirty patients who Mays III indicated were his patients. One of these files was that of Leon Ralston whose name had appeared on prescriptions sold to Detective Gabringer during the course of the investigation.

Accompanied by Agent Morton, Detective Gabringer interviewed several of these patients. They verified that they had received prescriptions from Dr. Mays based on an initial examination by Mays III and that their prescriptions were often refilled without examination. In addition, one patient and his attorney indicated that they had received copies of the patient's file which contained some discrepancies indicating that the file had been altered.

In March 1990, Detective Gabringer applied for a second warrant to search 2114 Salem Street for Medicare and workman's compensation files, as well as appointment books showing patient appointments from January 1, 1988 to present. The affidavit filed in support of this application indicated that at least three offenses had occurred: (1) practice of surgery or medicine without a license; (2) Medicare fraud; and (3) trafficking in drugs. A list of 502 patient files derived from claims made for payment in Medicare and workman's compensation cases was attached to the application.

As a basis for Detective Gabringer's belief that he had probable cause to search 2114 Salem Street, Gabringer recounted a number of pertinent facts in his affidavit supporting the second search warrant application. 2 Based on this information, a Dayton Municipal Court judge determined that probable cause existed and authorized a warrant to search the premises of 2114 Salem Street. The search warrant was executed under the direction of Detective Gabringer on March 29, 1990, resulting in the seizure of the designated 502 patient files and records of patient appointments for the preceding fifteen months.

Dr. Mays, Ruby Mays, and Doris Jenkins filed suit under 42 U.S.C. §§ 1981, 1983, 1986 and 1988, claiming that this search and police surveillance before and after the search violated their rights under 42 U.S.C. §§ 1981, 1983, 1986, 1988 and the Fourth, Fifth, and Fourteenth Amendments. Plaintiffs allege that these violations occurred when police searched Dr. Mays' medical office, as they did not have probable cause and as they conducted the search in an unreasonable manner. Named as Defendants were Gabringer, the City of Dayton, James E. Newby (Dayton's former Chief of Police), Dewey O. Mays III, and Tim Sucher.

Gabringer, Newby, and the City of Dayton ("the Dayton Defendants") moved for summary judgment on a number of grounds, including Gabringer's entitlement to qualified immunity. The district court denied summary judgment on the qualified immunity issue, finding that Gabringer was not entitled to qualified immunity because: (1) the affidavit filed by Gabringer in application for the search warrant failed to establish, as a matter

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of law, probable cause that Dr. Mays committed one of the offenses being investigated; (2) a genuine issue of material fact existed as to whether the omission of allegedly exculpatory material from the affidavit violated the rule established in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); and (3) the plaintiffs' submission of affidavits by patients who observed police surveillance of Dr. Mays' office and heard disparaging remarks about the plaintiff and his patients by unidentified police officers was sufficient to raise a genuine issue of material fact as to whether the Dayton...

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