Marx v. Gumbinner, 86-8403-CIV-EPS.

Decision Date19 May 1989
Docket NumberNo. 86-8403-CIV-EPS.,86-8403-CIV-EPS.
Citation716 F. Supp. 1434
PartiesRichard MARX, individually and as father and next friend of Kristina Marx, a Minor, Plaintiffs, v. Glenn H. GUMBINNER, Robert Timmann, Kelly Vaughn, Bruce H. Colton, and Pamela J. Roebuck, Defendants.
CourtU.S. District Court — Southern District of Florida

William G. Hutul and Richard J. Troy, Chicago, Ill., for plaintiffs.

J. David Bogenschutz, Fort Lauderdale, Fla., James W. Reilley, Des Plaines, Ill., and James Littman, Stuart, Fla., for defendants.

MEMORANDUM OPINION

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

SPELLMAN, District Judge.

THIS CAUSE comes before the Court upon Defendants', GLENN GUMBINNER, ROBERT TIMMANN and KELLY VAUGHN, Motion for Summary Judgment. Defendants move this Court for summary judgment on three grounds: 1) that probable cause existed for the arrest of Richard Marx; 2) that Defendants are entitled to qualified immunity from damages for an alleged wrongful arrest; and 3) that there is no evidence establishing the existence of a conspiracy to wrongfully arrest and prosecute Plaintiff.

I. STANDARD OF REVIEW

A motion for summary judgment should be granted "if the pleadings, depositions, answers to interrogatories on file, together with the affidavits show there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(a), Federal Rules of Civil Procedure. Defendants must show "that there are no genuine issues of material fact pertinent to those questions of law." Rich v. Dollar, 841 F.2d 1558, 1562 (11th Cir.1988). The undisputed facts must be resolved in the light most favorable to the non-movant. Goddard v. Urrea, 847 F.2d 765, 767 (11th Cir.1988). However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).

The three issues before this Court are 1) whether there was probable cause to arrest Richard Marx; 2) whether Defendants are entitled to a qualified immunity defense, even if probable cause did not exist; and 3) whether Plaintiff's allegations support a cause of action for conspiracy. Additionally, this Court will address the issue raised by Plaintiff concerning his claim for injunctive relief.

II. FACTS

Sometime during the early morning hours of February 8, 1986, four-year old Kristina Marx was abducted from the home of Claire Leonard (now Claire Marx), where Kristina and her father, Richard Marx, were staying with Claire and Claire's four-year old daughter, Julia. Richard Marx had won custody of Kristina after his divorce from Kristina's mother.

Richard Marx and Claire were sleeping on the floor of the living room at the time of the abduction. There was no sign of any forcible entry into the house. Kristina was apparently taken from the house to a wooded area behind the house, where she was brutally raped. Richard Marx was awakened by crying and arose to find Kristina, in her nightgown, covered with blood and mud, standing outside on the patio in front of the screen door. He asked her what happened and Kristina replied, "Daddy, you left me outside."

Richard Marx brought Kristina into the bathroom and attempted to clean her of mud and blood. He did not clean around her vaginal area. Claire immediately called the Sheriff's Office and for an ambulance. A Deputy Sheriff and the paramedics responded to the call. The paramedics gave Kristina first aid and transported her, along with Richard Marx, to the hospital.

Investigators from the Sheriff's Office discovered a calculator, a business card, a lady's wrist watch and a child's underpants in a muddy, ravine-like area approximately 50 yards from the patio door. Claire Leonard told the detective that the retrieved items were from the bedroom where Kristina had been sleeping. The Sheriff's Office brought in a K-9 dog who located the crime site, but the dog was unable to conclusively follow a scent beyond the confines of the crime scene and the house.

At the hospital, Kristina was taken into the emergency room. After first being prepped by the nurses, Dr. Crouch examined Kristina and performed a rape kit on Kristina to be forwarded to the crime lab for analysis. Dr. Crouch told Detective Timmann that Kristina told him on one occasion that "Daddy did this to me," and on a second occasion, "Daddy left me outside to sleep outside in my nightgown, and he did this to me." These statements were made in the presence of the two assisting registered nurses, and were subsequently repeated to Detective Captain Gumbinner, who arrived at the hospital shortly after the arrival of Detective Timmann and interviewed both the doctor and the two nurses.

At the completion of the examination, Detective Marcum was permitted to enter the examination room to prepare photographs of the victim for evidentiary purposes. Detective Marcum conducted a brief interview of Kristina while taking the photos. During that interview, Kristina told Detective Marcum, "a bad man did this to me." The two nurses were also present at that statement. None of the other law enforcement officers at the hospital interviewed Kristina directly.

At the hospital, another nurse, Ann Allen (now Ann Sarno), approached Detective Gumbinner and informed him that she was a friend of Richard Marx and Kristina. Ann Allen went into Kristina's room and subsequently told Detective Gumbinner that Kristina had told her, "a bad man took me outside." One of the nurses was also present and testified that Kristina said, "a bad man hurt me." Ann Allen also told Detective Gumbinner that she had known Richard Marx to have had financial problems, that Richard Marx drank, and that he went to topless bars.

Richard Marx was taken by Detective Timmann to the Sheriff's Office to be questioned. Upon arrival at the Department, he was given his Miranda warnings, and a taped statement from Mr. Marx was taken. Among other things, Richard Marx told Detective Gumbinner that he was usually a very light sleeper. Although an intruder could have entered the bedroom area of the home without entering the living room, the likely point of entry into the home indicated that an intruder's most likely route would have led him to have walked almost directly over Richard Marx. Mr. Marx also expressed a desire that Kristina not remember the incident. He protested his innocence throughout the interview.

Richard Marx, after consulting with his attorney, voluntarily submitted to a polygraph test. Detective Kelly Vaughn, a polygraph specialist, administered the test, and concluded that Richard Marx was not truthful in his responses to the questions. Detective Vaughn later testified that Richard Marx was upset, and that such emotional upset can affect the results of a polygraph examination.

After the polygraph examination, Mr. Marx consented to a search of his residence and automobile. The search uncovered soiled clothes and shoes, a shirt which appeared to have been freshly washed, and four photographs of Kristina, including one photo of Kristina nude and one involving frontal nudity, although all of the photographs seem to be the kind that most parents would have in the family album, or even on display. Also uncovered were several pornographic magazines, none of which involved children.

Detective Gumbinner consulted Assistant State Attorney Pam Roebuck, who in turn called State Attorney Colton. Mr. Colton advised Ms. Roebuck to tell Detective Gumbinner to hold off on the arrest until a statement was taken from the child and a polygraph examination was completed. Mr. Marx was arrested after the polygraph examination was completed, but no statement was ever taken from Kristina, despite the advice of the State Attorney.

Richard Marx had earlier expressed his willingness for blood, saliva, and hair samples to be taken from him, but upon his counsel's advise, withdrew his consent. A probable cause hearing was conducted before Judge Cianca, on Sunday, February 9, 1986. That court determined that probable cause did exist, and ordered Mr. Marx held without bond. On March 4, 1986, a bond reduction hearing was held before Chief Judge Trowbridge, who entered an Order reducing the bond to $50,000. The State also filed its information with the court, and the court ordered blood, hair and saliva samples from Mr. Marx. On March 5, 1986, at 9:30 a.m., Detective Timmann and Richard Marx went to the hospital, where the samples were obtained. Detective Timmann delivered the samples to the crime lab, and at 1:00 p.m., the same day, the forensic expert advised Detectives Gumbinner and Timmann that the blood from the victim and the samples from Richard Marx did not match. Assistant State Attorney Pam Roebuck was immediately contacted and the charges were dropped.

III. DISCUSSION
A. Probable Cause

The law is well settled that if probable cause exists to arrest a plaintiff, a subsequent action for violation of civil rights arising out of that arrest cannot survive. Proof of the actual existence of probable cause is an absolute bar to a 1983 action. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Lesavage v. White, 755 F.2d 814 (11th Cir.1985). The existence of probable cause must be evaluated on a "reasonable person" basis. Under Florida law, probable cause exists where the circumstances are sufficient to cause a reasonably cautious person to believe that the person accused is guilty of the offense charged. Shriner v. State, 386 So.2d 525, 528 (Fla.1980). The fact that a defendant is subsequently acquitted or charges are dropped against the defendant is of no consequence in determining the validity of the arrest itself. Brown v. State, 91 So.2d 175, 177 (Fla.1956).

This Court first recognizes that this is a brutal crime that necessarily involves all of the participants in a highly emotional atmosphere —...

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3 cases
  • Marx v. Gumbinner
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 13, 1990
    ...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 q......
  • Freyre v. Hillsborough Cnty. Sheriff's Office
    • United States
    • U.S. District Court — Middle District of Florida
    • May 13, 2014
    ...based on the information presented to her by other individuals does not plausibly constitute a conspiracy. See Marx v. Gumbinner, 716 F. Supp. 1434, 1440 (S.D. Fla. 1989) ("Where a plaintiff's allegations that a conspiracy existed are supported only by the fact that a certain decision was r......
  • Smith v. Vaughn, 95-249-CIV-FTM-17D.
    • United States
    • U.S. District Court — Middle District of Florida
    • November 20, 1996
    ...of that arrest cannot survive. Proof of the actual existence of probable cause is an absolute bar to a 1983 action." Marx v. Gumbinner, 716 F.Supp. 1434, 1437 (S.D.Fla.1989) (citing Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). The existence of probable cause is an......

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