Eubanks v. Freburger

Decision Date17 October 2012
Docket NumberCASE NO. 11-60714-CIV-COHN/OTAZO-REYES
PartiesMENTORA EUBANKS, and ARTHUR N. HENSON, II, D.O., Plaintiffs, v. CAROL FREBURGER, Defendant.
CourtU.S. District Court — Southern District of Florida

THIS CAUSE is before the Court on Defendant Carol Freburger's Motion for Summary Judgment [DE 62] ("Motion"). The Court has considered the Motion, Plaintiffs' Response [DE 68], Defendant's Reply [DE 72], the record, and is otherwise fully advised in the premises.


In 2005, Plaintiff Mentora Eubanks owned Southeastern Wellness Institute ("SWI"), a Florida medical clinic licensed to dispense narcotics in Fort Lauderdale, Florida. See Compl. [DE 1] ¶ 3. Plaintiff Arthur N. Henson, II, D.O., was the treating physician at the clinic. See id. That year, the Florida Attorney General's Office, through the Medicaid Fraud Control Unit, instituted a criminal investigation of Plaintiffs. See Compl. ¶¶ 4, 9. At the time, Defendant Carol Freburger was a Lieutenant at the Medicaid Fraud Control Unit. See id. ¶ 5.

Plaintiffs allege that, as part of the criminal investigation, Defendant "coercedfalse criminal affidavits from Medicaid patients by forcing them to lie in their criminal affidavits under threat of losing their Medicaid benefits." Id. ¶ 10. The false information allegedly included "accusing the Plaintiffs of diagnosing and prescribing narcotic pain killers without any physical exam and selling the narcotic pain killers without a license." Id. The Complaint alleges that warrants were issued for Plaintiffs' arrests based on Defendant's falsified arrest affidavit, and Plaintiffs were ultimately arrested. See id. Plaintiffs also argue that Defendant knew or should have known, prior to Plaintiffs' arrests, of the alleged victims' chronic medical conditions as described in their medical files. See Mem. of Law in Opp'n to Mot. For Summ. J. [DE 68] at 8-9.

On June 8, 2005, the Office of the Attorney General issued a press release announcing that Plaintiffs had been arrested on charges of "providing prescriptions for controlled drugs in exchange for cash." See Press Release, Ex. A to Compl. [DE 6] ("Press Release"); see also Compl. ¶ 11. The press release accused Plaintiffs of "writing prescriptions for a controlled substance for monetary benefit," "operating a pharmacy without a license and/or licensed practitioner," "dispensing prescriptions without a licensed pharmacist or dispensing practitioner," and "[p]rescribing highly addictive and often abused drugs in exchange for cash . . . [without giving] any physical exams to justify the prescriptions." Press Release; Compl. ¶ 11. The Complaint alleges that Defendant and other state officials knew the allegations in the press release to be false, but published the press release anyway "to intimidate and damage the Plaintiffs, influence the jury pool, and enhance the public perception of the [Defendant] and the Office of the Attorney General." Compl. ¶ 12. In February 2008, after a five-day jury trial, both Plaintiffs were ultimately acquitted. Id. ¶ 13.

On April 4, 2011, Plaintiffs filed this action against Defendant in her individual and official capacities.1 See Compl. The Complaint brings the following claims: "due process" (Counts I and II)2 , defamation (Counts III, IV, IX, and X)3 ,"outrageous conduct" (Counts V and VI)4 , and malicious prosecution (Counts VII and VIII). Id. The Complaint alleges that, as a result of the arrest and prosecution, Plaintiff Eubanks was forced out of her business and Plaintiff Henson had to leave his medical practice. See id. Also, the Florida Department of Health suspended Henson's license, and the Agency for Health Care Administration terminated his Medicaid provider number. See Press Release.

In the instant Motion, Defendant Carol Freburger moves for summary judgment on four grounds. First, she argues that she is entitled to qualified immunity regarding Plaintiffs' § 1983 and malicious prosecution claims because Plaintiffs' arrests were supported by at least arguable probable cause. Second, she contends that under Florida Statutes § 768.28, she is entitled to statutory immunity from Plaintiffs' state-lawclaims. Third, she argues that Plaintiffs' claims for intentional infliction of emotional distress must fail because Plaintiffs' arrests were supported by probable cause. Fourth, she asserts that Plaintiffs' malicious prosecution claim is barred because she consulted with attorneys before filing the arrest affidavit. Plaintiffs oppose the Motion.


Under Federal Rule of Civil Procedure 56(a), the Court may grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To discharge this burden, the movant must show that "there is an absence of evidence to support the non-moving party's case." Id. at 325.

After the movant has met its burden, the burden of production shifts to the non-moving party, who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact [the Court may] grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it." Fed. R. Civ. P. 56(e)(3).

At the summary judgment stage, the Court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Inmaking this determination, the Court must decide which issues are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.


This case turns on the issue of probable cause. If Defendant had probable cause to arrest Plaintiffs, then Defendant will be entitled to qualified immunity and Plaintiffs' claims must fail. As will be discussed below, there are no genuine issues of material fact with regard to the existence of probable cause. Accordingly, the Court will grant the Motion.

A. Standard for Qualified Immunity

Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."5 Harlow v. Fitzgerald, 457 U.S. 800,818 (1982). To invoke qualified immunity, the public official must establish that she was acting within the scope of her discretionary authority. Bates v. Harvey, 518 F.3d 1233, 1242 (11th Cir. 2008). The burden then shifts to the plaintiff to overcome the defense of qualified immunity. Id.

"A government official proves that he acted within the purview of his discretionary authority by showing 'objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.'" Hutton v. Strickland, 919 F.2d 1531, 1537 (11th Cir. 1990) (quotations & citations omitted). Actions such as investigating crimes and questioning witnesses fall within the scope of a law enforcement officer's discretionary authority. See Riebsame v. Prince, 267 F. Supp. 2d 1225, 1237 (M.D. Fla. 2003), aff'd, 91 F. App'x 656 (11th Cir. 2004); see also Mears v. Brett McCulley, No. CV-09-S-2540-NE, 2012 WL 3030527, at *29 (N.D. Ala. July 19, 2012) ("Investigating crimes, conducting searches, and making arrests are legitimate job-related functions within the discretionary authority of police officers."). Here, Defendant acted in her capacity as a Lieutenant at the Medicaid Fraud Control Unit of the Florida Attorney General's Office to investigate alleged wrongdoing by Plaintiffs and take affidavits from witnesses. Therefore, Defendant has successfully established that she acted within the scope of her discretionary authority, and the burden shifts to Plaintiffs to overcome the qualified-immunity defense. See Bates, 518 F.3d at 1242.

To overcome qualified immunity, Plaintiffs must satisfy a two-part test. Saucier v. Katz, 533 U.S. 194, 201 (2001). First, they must demonstrate that the facts alleged, taken in the light most favorable to Plaintiffs, show that the officer's conduct violated aconstitutional right. Id. Next, the Court must "determine 'whether, at the time of the incident, every objectively reasonable police officer would have realized the acts violated already clearly established federal law.'" Davis v. Williams, 451 F.3d 759, 762 (11th Cir. 2006) (quoting Garrett v. Athens-Clarke County, 378 F.3d 1274, 1278-79 (11th Cir. 2004)). Essentially, to meet their burden, Plaintiffs must prove both that there was a violation of a constitutional right and that the right was clearly established.

Here, Plaintiffs' claims are based on Defendant's alleged procuring of false witness affidavits and filing a false arrest affidavit, which led to the arrest and criminal prosecutions of Plaintiffs without probable cause. "[I]t is clearly established that an arrest made without probable cause violates the Fourth Amendment." Davis, 451 F.3d at 762 (citing Thornton v. City of Macon, 132 F.3d 1395, 1399 (11th Cir. 1998); Von Stein v. Brescher, 904...

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