905 F.2d 1503 (11th Cir. 1990), 89-5594, Marx v. Gumbinner

Docket Nº:89-5594.
Citation:905 F.2d 1503
Party Name:Richard MARX, individually, and Kristina Marx, a minor, Plaintiffs-Appellants, v. Glenn H. GUMBINNER, Robert Timmann and Kelly Vaughn, Defendants-Appellees, Martin County Sheriff's Dept., et al., Defendants.
Case Date:July 13, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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905 F.2d 1503 (11th Cir. 1990)

Richard MARX, individually, and Kristina Marx, a minor,



Glenn H. GUMBINNER, Robert Timmann and Kelly Vaughn,


Martin County Sheriff's Dept., et al., Defendants.

No. 89-5594.

United States Court of Appeals, Eleventh Circuit

July 13, 1990

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Richard J. Troy, Chicago, Ill., for plaintiffs-appellants.

Keith C. Tischler, Julius F. Parker, Jr., Parker, Skelding Labasky & Corry, Tallahassee, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before CLARK and EDMONDSON, Circuit Judges, and RUBIN [*], Senior Circuit Judge.

EDMONDSON, Circuit Judge:

This is the second appeal involving a lawsuit filed by Richard Marx against two Florida state attorneys and three deputies of the Martin County, Florida, Sheriff's Department. Defendant deputies, after discussing the existence of probable cause with a state attorney, arrested Marx for allegedly sexually assaulting his then four-year-old daughter, Kristina. About a month after the arrest, blood tests proved that Marx was not the rapist; and the state attorney's office dropped the charges. Marx brought a section 1983 1 action on behalf of himself and Kristina, claiming that his arrest was wrongful and illegal under the fourth and fourteenth amendments and that defendants willfully and maliciously violated his constitutional rights.

The district court denied the state attorneys' motions for dismissal and for summary judgment. On interlocutory appeal, this court dismissed some of Marx's claims against the state attorneys and remanded. Marx v. Gumbinner, 855 F.2d 783 (11th Cir.1988). Marx settled the claims outstanding against the attorneys.

The defendant deputies then renewed their motion for summary judgment, which had been deferred pending resolution of the interlocutory appeal involving the state attorneys. The district court granted the deputies' motion on the grounds that the officers had probable cause to arrest Marx and, even if probable cause did not exist, the officers were protected from damages claims by the doctrine of qualified immunity. 716 F.Supp. 1434. We affirm the grant of summary judgment on the ground that defendants had probable cause to arrest Marx and to take him into custody for questioning. 2


Marx and Kristina were spending the night at the home of Marx's girlfriend, Claire Leonard. Marx found Kristina around 5:00 in the morning standing outside the back door of Leonard's home. Kristina had been raped and was covered with blood and mud. Marx began to clean Kristina while Leonard called the police and for an ambulance to take Marx and Kristina to the hospital.

Investigators at the Leonard home discovered several items of Leonard's personal property along with a child's underpants in a muddy ravine about fifty yards from the patio door. Leonard said the items had

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been in the bedroom where Kristina had been sleeping. The officers found no evidence of forced entry into the house; and, because the screen door opening onto the patio would not lock, officers assumed that an intruder would have entered through that door. A police dog located the crime scene and appeared to follow a scent between the crime scene, the house, and a road in back of Leonard's house; but the scent evidence was not strong.

Meanwhile, emergency room personnel treated Kristina. She was severely injured, and detectives at the hospital were prevented from interviewing her immediately. The doctor who first treated Kristina told detectives after making an initial examination that, when asked how she got mud in her mouth, Kristina said "Daddy did this to me," and "Daddy left me outside to sleep outside in my nightgown, and he did this to me." Marx, who was not allowed in the treatment room, telephoned a friend, Ann Allen Sarno, who was a nurse. She came to the hospital and offered to talk to Kristina. Detectives told Sarno to report to them only what Kristina volunteered. After talking to Kristina, Sarno told detectives that Kristina said "a bad man took me outside." When detectives told Sarno about Kristina's statements implicating Marx, Sarno said she was not surprised. Sarno told detectives that Marx frequented topless bars and that he had...

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