Gordon v. Kevin Beary , 444 F. App'x 427 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14139 OCTOBER 26, 2011
JOHN LEY
________________________ CLERK
D.C. Docket No. 6:08-cv-00073-MSS-KRS
BRIDGET GORDON,
MITCHELL GORDON,
a.k.a. Mitch Gordon,
llllllllllllllllllllllllllllllllllllllll Plaintiffs - Appellants,
versus
KEVIN BEARY, in his official capacity
as Sheriff of Orange County, Florida,
RONALD WILCOX, in his individual capacity,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees,
CITY OF OCOEE, a municipal corporation,
et al.,
llllllllllllllllllllllllllllllllllllllll Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 26, 2011)
Before EDMONDSON and PRYOR, Circuit Judges, and HOPKINS,* District Judge.
PER CURIAM:
This appeal concerns whether a deputy sheriff, Ronald Wilcox, is entitled to
qualified immunity against Bridget Gordon’s complaint that the deputy violated
the Fourth and Fourteenth Amendments when he arrested her without probable
cause and seized items from her pharmacy that were outside the scope of a search
warrant. Gordon also sued the Sheriff in his official capacity. The district court
entered a summary judgment in favor of Deputy Wilcox and the Sheriff. We
affirm.
I. BACKGROUND
In 2003, Bridget Gordon owned and operated a pharmacy in Orange
County, Florida. Gordon was the only licensed pharmacist at the pharmacy, and
she employed Tracy Romano and Betty Horn as clerks and Kathy Brown as a
manager.
In early 2003, a joint operation of peace officers from the cities of Ocoee
and Winter Garden, Florida, and the Sheriff’s Office of Orange County
investigated the pharmacy. Ken Taylor, Kevin Marcum, Michael Henry, Donna
*
Honorable Virginia Emerson Hopkins, United States District Judge for the Northern
District of Alabama, sitting by designation.
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Olphie, Bryan Pace, and Brian Satterlee were members of this task force. Ronald
Wilcox, a deputy in the Sheriff’s Office, also participated in the investigation due
to his extensive experience with pharmaceutical crimes.
The task force enlisted several confidential informants to purchase
controlled substances from Gordon’s pharmacy without a prescription. In June
2003, one informant, Greg Gurley, purchased ten OxyContin pills from Romano
without a prescription. OxyContin contains Oxycodone as an active ingredient,
and Oxycodone is a Schedule II controlled substance under Florida law, Fla. Stat.
§ 893.03(2)(a)1.o. In October 2003, another informant, Jonathan Tanner,
attempted to purchase controlled substances from the pharmacy without a
prescription. Tanner initially stated in a sworn affidavit that he had purchased
about 60 hydrocodone pills, a Schedule II controlled substance under Florida law,
id. § 893.03(2)(a)1.j., directly from Gordon without a prescription, but Tanner was
arrested for faking a drug buy in an unrelated investigation two days later. Upon
his arrest, Tanner confessed to Agents Henry and Olphie that he had also faked his
purported purchase from Gordon.
In January 2004, Marilyn Meyer purchased 83 grams of controlled
substances from Horn without a prescription. The task force arrested Meyer, and
Deputy Wilcox questioned her. Meyer stated that she had procured controlled
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substances without a prescription from the technicians at Gordon’s pharmacy
many times. Meyer also stated that she thought that the technicians obtained
permission from Gordon to dispense the controlled substances without a
prescription, but she did not know. Meyer agreed to work as a confidential
informant, and she later purchased 100 hydrocodone pills from Romano without a
prescription.
On January 13, 2004, Deputy Wilcox prepared an arrest warrant for Gordon
for the crime of trafficking in hydrocodone. To establish probable cause, Wilcox
relied on Tanner’s and Meyer’s purchases and Meyer’s statement. Wilcox did not
mention Tanner’s recantation in the warrant. He explained that, when he executed
the warrant, he knew about Tanner’s arrest for faking a controlled buy in an
unrelated investigation, but did not know that Tanner had recanted his sworn
statement about purchasing pills directly from Gordon. Wilcox also prepared a
search warrant for Gordon’s pharmacy to allow agents to seize, among other
things, “controlled substances,” “prescriptions of controlled substances,” “records
pertaining to the illegal sale and distribution of controlled substances,” and
“paraphernalia used in weighing, packaging and concealment of controlled
substances.” A judge approved and signed both warrants.
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Deputy Wilcox executed the warrants on January 14, 2004. He entered
Gordon’s pharmacy with several officers, placed Gordon and Romano in custody,
and searched the pharmacy. The Florida Department of Health conducted an
administrative inspection of the pharmacy simultaneously, and the inspection
revealed numerous deficiencies and violations of Florida law, including
mislabeled medications, expired medications in the active stock of the prescription
department, and unclean and unsanitary premises.
During the search, officers seized items beyond the scope of the search
warrant. Gordon contends that these items included unopened cabinets, cases of
expired medicine, miscellaneous drugs, non-controlled prescriptions, tampons,
penicillin, vitamins, saline, pimple cream, personal photographs, her children’s
birth certificates and report cards, and amniocentesis. Deputy Wilcox and
Sergeant Marcum later testified that they could not remember whether they had
seized some of these items, but they did not deny Gordon’s contentions. Wilcox
completed a record that corroborates that he and the other officers seized entire
cabinets, non-controlled scripts and pills, and miscellaneous documents and
paperwork. In 2009, the Sheriff’s Office still had in its possession some of the
items seized on January 14, 2004, including drugs, containers, paperwork, and
“thousands of forged prescriptions.”
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Deputy Wilcox explained that the seizures were necessary due to the poor
conditions of the pharmacy:
I and the Department of Health and other agents . . . went through the
cabinets and found inside the cabinets expired medications commingled
with medications that were not expired. We found cigarettes, rat
defecation, rodent defecation. We found dead roaches. We found
bottles with pink, purple, green, black, white pills. We found no
organization. I had experts from the Department of Health direct me to
seize all of the medications that were on the premises, and I was
prepared to do so whether they had asked me to [or] not for public
safety. . . . I’ve seen restroom[s], public restrooms cleaner than that
pharmacy. Drawers were opened up, and we found rat hairs.
Sergeant Marcum explained that “anything that pertained to pills or scripts
was taken,” despite whether or not it was a controlled substance, “because of the
mess that was there.” He added that the seized items were “taken to our property
section where we could go through it all instead of being in that nasty pharmacy to
go through the pills.”
On July 6, 2004, Gordon was charged with trafficking in hydrocodone, Fla.
Stat. § 893.135(1)(c)1.c. The State later declined to prosecute, and dismissed the
charges. On October 28, 2004, Gordon executed an assignment of assets to
Cardinal Health 103, Inc. Cardinal Health filed in the state court a Notice of
Interest in the property seized from Gordon’s pharmacy “predicated upon an
absolute assignment.”
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On May 31, 2005, a judge ordered the Sheriff to release all property seized
on January 14, 2004, that related to Gordon’s criminal charges except for
$60,894.68 in cash, which remained subject to a forfeiture action. The order
acknowledged that “Cardinal Health has a valid assignment by [Gordon] in this
cause assigning to it all property seized by [the] Orange County Sheriff’s Office.”
Gordon later acknowledged in a settlement agreement with Cardinal Health that
she had “assigned to Cardinal [Health] certain of [her] assets, including [her]
rights, titles and interests in and to property seized by the Sheriff.”
Gordon and her husband, Mitchell, filed a complaint against Deputy
Wilcox, the Sheriff in his official capacity, and others in state court on August 3,
2007. Wilcox and the Sheriff removed the action to the district court, and the
parties stipulated to the dismissal of all other defendants. In a second amended
complaint, the Gordons asserted federal and state claims against Wilcox and the
Sheriff, including violations of the Fourth and Fourteenth Amendments, 42 U.S.C.
§ 1983, false arrest, conversion, and loss of consortium. The district court granted
Wilcox and the Sheriff a summary judgment.
II. STANDARD OF REVIEW
“We review de novo the district court’s disposition of a summary judgment
motion based on qualified immunity, resolving all issues of material fact in favor
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of Plaintiffs and then answering the legal question of whether Defendants are
entitled to qualified immunity under that version of the facts.” West v. Tillman,
496 F.3d 1321, 1326 (11th Cir. 2007).
III. DISCUSSION
We divide our discussion in three parts. First, we address Bridget Gordon’s
federal claims against Deputy Wilcox. Second, we address Gordon’s federal
claims against the Sheriff. Third, we address the Gordons’ state claims.
A. Deputy Wilcox Enjoys Qualified Immunity Against Gordon’s Federal Claims.
Gordon argues that Deputy Wilcox violated her clearly established federal
rights when he arrested her without probable cause, and seized items outside the
scope of the search warrant. The district court granted Wilcox summary judgment
based on qualified immunity.
“‘Qualified immunity shields government officials from liability for civil
damages for torts committed while performing discretionary duties unless their
conduct violates a clearly established statutory or constitutional right.’” Crenshaw
v. Lister, 556 F.3d 1283, 1289 (11th Cir. 2009) (quoting Hadley v. Gutierrez, 526
F.3d 1324, 1329 (11th Cir. 2008)). If an official establishes that he was acting
within his discretionary authority, the burden shifts to the plaintiff to prove that
the official’s conduct violated a federal right and that the right was clearly
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established. Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010).
Because it is undisputed that Deputy Wilcox was acting within the scope of his
discretionary authority, the burden shifted to Gordon to present evidence that
Wilcox violated her clearly established federal rights. Because Gordon failed to
satisfy that burden, Wilcox enjoys qualified immunity against her federal claims.
1. Deputy Wilcox Did Not Violate a Federal Right of Gordon’s When He
Arrested Her Because Probable Cause Supported the Arrest.
Gordon argues that Deputy Wilcox lacked probable cause for her arrest.
The Fourth Amendment to the United States Constitution forbids “unreasonable
searches and seizures.” U.S. Const. amend. IV. An arrest is a seizure of the
person, California v. Hodari D., 499 U.S. 621, 624, 111 S. Ct. 1547, 1549–50
(1991), and the reasonableness of an arrest is “determined by the presence or
absence of probable cause for the arrest,” Skop v. City of Atlanta, Ga., 485 F.3d
1130, 1137 (11th Cir. 2007). An officer has probable cause to arrest if the facts
within his knowledge or about which he had reasonably trustworthy information
would allow a prudent man to believe reasonably that a suspect had committed or
was committing an offense. Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir.
2003). “To receive qualified immunity protection, an officer ‘need not have actual
probable cause but only “arguable probable cause,”’” which requires us to
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determine “‘whether an officer reasonably could have believed that probable cause
existed, in light of the information the officer possessed.’” Id. (quoting Montoute
v. Carr, 114 F.3d 181, 184 (11th Cir. 1997)).
Deputy Wilcox’s affidavit in support of Gordon’s arrest warrant established
probable cause for her arrest. Even if we credit Tanner’s inconsistent testimony in
favor of Gordon, Wilcox’s accurate summaries of Meyer’s purchase and
subsequent statement in the affidavit were sufficient to allow a prudent man to
believe reasonably that Gordon had committed or was committing an offense. See
Holmes, 321 F.3d at 1079. The description of Tanner’s purported buy in the
affidavit was “[un]necessary to the finding of probable cause” because “the
affidavit’s remaining content [was] []sufficient to establish probable cause.”
Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 2676 (1978). Wilcox
did not violate Gordon’s federal rights when he arrested her.
2. Deputy Wilcox Did Not Violate a Federal Right of Gordon’s That Was Clearly
Established When He Seized Items Outside the Scope of the Search Warrant.
Gordon argues that Deputy Wilcox seized items outside the scope of the
search warrant, including non-controlled medications and personal items, but to
abrogate Wilcox’s qualified immunity, Gordon had to establish that (1) Wilcox’s
seizure violated a federal right (2) that was clearly established, Case v. Eslinger,
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555 F.3d 1317, 1325–26 (11th Cir. 2009). We are “permitted to exercise [our]
sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular
case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818
(2009). Because Gordon’s claim is one “in which it is plain that a constitutional
right [was] not clearly established,” id. at 237, 129 S. Ct. at 818, our analysis
begins and ends with the second element of the qualified immunity inquiry.
See id. at 243–44, 129 S. Ct. at 822 (“An officer conducting a search is entitled to
qualified immunity where clearly established law does not show that the search
violated the Fourth Amendment.”).
The inquiry whether a federal right is clearly established “‘must be
undertaken in light of the specific context of the case, not as a broad general
proposition.’” Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc)
(internal quotation marks omitted) (quoting Brosseau v. Haugen, 543 U.S. 194,
198, 125 S. Ct. 596, 599 (2004)). “Exact factual identity with a previously
decided case is not required, but the unlawfulness of the conduct must be apparent
from pre-existing law.” Id. “‘The critical inquiry is whether the law provided [the
officer] with “fair warning” that [his] conduct violated the Fourth Amendment.’”
Id. (quoting McClish v. Nugent, 483 F.3d 1231, 1248 (11th Cir. 2007) (quoting
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Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002))). We must
“look[] only to binding precedent—cases from the United States Supreme Court,
the Eleventh Circuit, and the highest court of the state under which the claim
arose—[to] determine whether the right in question was clearly established at the
time of the violation.” Id.“Where[] . . . ‘an officer who is executing a valid search for one item seizes
a different item,’ [the Supreme] Court rightly ‘has been sensitive to the danger . . .
that officers will enlarge a specific authorization, furnished by a warrant or an
exigency, into the equivalent of a general warrant to rummage and seize at will.’”
Minnesota v. Dickerson, 508 U.S. 366, 378, 113 S. Ct. 2130, 2138 (1993) (fourth
alteration in original) (quoting Texas v. Brown, 460 U.S. 730, 748, 103 S. Ct.
1535, 1546–47 (1983) (plurality opinion) (Stevens, J., concurring in judgment)).
“The requirement that warrants shall particularly describe the things to be seized
makes general searches under them impossible and prevents the seizure of one
thing under a warrant describing another. As to what is to be taken, nothing is left
to the discretion of the officer executing the warrant.” Marron v. United States,
275 U.S. 192, 196, 48 S. Ct. 74, 76 (1927); see also Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388, 394 n.7, 91 S. Ct. 1999, 2004 n.7 (1971) (“[T]he
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Fourth Amendment confines an officer executing a search warrant strictly within
the bounds set by the warrant.”).
We have recognized that “[t]he seizure of items not covered by a warrant
does not automatically invalidate an otherwise valid search.” United States v.
Schandl, 947 F.2d 462, 465 (11th Cir. 1991). “The crucial inquiry is always
‘whether the search and seizures were reasonable under all the circumstances.’”
Id. (quoting United States v. Wuagneux, 683 F.2d 1343, 1352 (11th Cir. 1982)).
“Such things as the scope of the warrant, the behavior of the searching agents, the
conditions under which the search was conducted, and the nature of the evidence
being sought must be considered in determining whether or not the search was
reasonable.” Id.; see also Maughon v. Bibb Cnty., 160 F.3d 658, 660 (11th Cir.
1998) (“Negligent or innocent mistakes do not violate the Fourth Amendment.”).
We have also held it reasonable for agents to remove intact files, books, and
folders when a particular document within the file was identified as falling within
the scope of the warrant because “[t]o require otherwise ‘would substantially
increase the time required to conduct the search, thereby aggravating the
intrusiveness of the search.’” Wuagneux, 683 F.2d at 1353 (quoting United States
v. Beusch, 596 F.2d 871, 876–77 (9th Cir. 1979)).
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In Schandl, we held searches reasonable, even though some of the items
seized were outside the scope of the warrants, because “the vast majority of the
documents seized were within the scope of the warrants[,] [and] [i]t was inevitable
that some irrelevant materials would be seized.” 947 F.2d at 465. Schandl was
charged with tax evasion. Id. at 464. Internal Revenue Service agents searched
Schandl’s home and office based on valid search warrants for information
“relating to any financial transactions” of Schandl. Id. at 465. Schandl challenged
the validity of the searches because “agents read love letters and seized personal
documents, some of which were not relevant to the[] proceedings,” id., including
“documents concerning his son’s rhinoplasty, a computer disc containing a bible
home study course, a rolodex, a box of letters from his mother and father, tax
protester manuals and other personal items,” id. at 464, but we upheld the searches
and seizures as reasonable, id. at 465.
Gordon fails to explain how Deputy Wilcox violated her clearly established
federal right. Our precedent in Schandl provided Wilcox with a standard of
reasonableness that accounted for the “conditions under which the search was
conducted[] and the nature of the evidence being sought.” Id. Wilcox explained
that he and the other agents “found no organization” in the pharmacy and seized
non-controlled medications after they “found inside the cabinets expired
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medications commingled with medications that were not expired[,] . . . cigarettes,
rat defecation, rodent defecation[,] . . . dead roaches[,] . . . [and] bottles with pink,
purple, green, black, [and] white pills.” Sergeant Marcum explained that “[t]here
were so many pills in drawers that were just laying there that [he] didn’t know
what [were] good pills and what were bad pills.” Marcum added that “anything
that pertained to pills or scripts was taken,” despite whether or not it was a
controlled substance, “because of the mess that was there. . . . Everything . . . was
taken to [the] property section where [the agents] could go through it all instead of
being in that nasty pharmacy to go through the pills.” Wilcox recorded the
condition of the pharmacy in a video that we have reviewed. In the light of this
record of unsanitary conditions, the nature of the evidence being sought, and our
decision in Schandl, we cannot say that the seizure of some non-controlled
medications and personal items from Gordon’s pharmacy violated her clearly
established federal right.
B. Gordon’s Federal Claims Against the Sheriff Fail as a Matter of Law.
Gordon asserts claims for municipal liability against the Sheriff under
section 1983 on the ground that “Wilcox’s wrongdoing grew out of the Sheriff’s
[O]ffice custom, policy, or practice.” Gordon’s claims fail to the extent that they
are based on her arrest and the alleged withholding of property after the dismissal
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of her criminal charge because she has not established a constitutional violation on
those grounds. See Case, 555 F.3d at 1328. Gordon also asserts a claim based on
the seizure of items outside the scope of the search warrant, which we must
address on the merits.
The district court granted summary judgment in favor of the Sheriff after it
determined that Gordon had failed to establish a violation of her federal rights, but
we can affirm the district court on any ground supported by the record, Krutzig v.
Pulte Home Corp., 602 F.3d 1231, 1234 (11th Cir. 2010). The parties fully briefed
on summary judgment whether the Sheriff had acted with deliberate indifference
to Gordon’s federal rights when he allegedly failed to train and supervise his
deputies about the law of search and seizure. The record contains evidence of
only a single purported constitutional violation, not the “pattern of similar
constitutional violations by untrained employees [that] is ‘ordinarily necessary’ to
demonstrate deliberate indifference for purposes of failure to train,” Connick v.
Thompson, 563 U.S. --, --, 131 S. Ct. 1350, 1360 (2011) (quoting Bd. of Comm’rs
of Bryan Cnty. v. Brown, 520 U.S. 397, 409, 117 S. Ct. 1382, 1391 (1997)). The
record is also undisputed that Deputy Wilcox attended “approximately thirty
classes on searches and seizures” during his career with the Sheriff’s Office.
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Because the record fails to support Gordon’s allegations of deliberate indifference,
we affirm the summary judgment in favor of the Sheriff on this alternative ground.
C. The Gordons’ State Claims Against Deputy Wilcox and the Sheriff
Fail as a Matter of Law.
The Gordons’ claims under state law fail. Bridget Gordon alleged claims
for false arrest and conversion, and her husband alleged a claim for loss of
consortium. We address each in turn.
Bridget Gordon argues that “either Wilcox or the Sheriff is liable for false
arrest and summary judgment must be reversed” but that argument fails. Probable
cause is an affirmative defense to a claim for false arrest, City of St. Petersburg v.
Austrino, 898 So. 2d 955, 957 (Fla. Dist. Ct. App. 2005), and we have explained
that probable cause supported Gordon’s arrest. See Rankin v. Evans, 133 F.3d
1425, 1431 (11th Cir. 1998) (“[T]he standard for determining the existence of
probable cause is the same under both Florida and federal law[] . . . .”).
Gordon’s claim for conversion against the Sheriff likewise fails. “‘[T]he
essence of an action for conversion is not the acquisition of property by the
wrongdoer, but rather the refusal to surrender the possession of the subject
personalty after demand for possession by one entitled thereto.’” Joseph v.
Chanin, 940 So. 2d 483, 487 (Fla. Dist. Ct. App. 2006) (quoting Murrell v. Trio
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Towing Serv., Inc., 294 So. 2d 331, 332 (Fla. Dist. Ct. App. 1974)). Gordon
concedes that she did not demand return of the seized property before she
executed an assignment of assets in favor of Cardinal Health, which included her
“rights, titles and interests in and to property seized by the Sheriff.” Because
Gordon did not demand return of the seized property before her possessory interest
in that property terminated, she has no claim for conversion against the Sheriff.
Finally, Mitchell Gordon’s claim for loss of consortium fails. That claim is
derivative, and the Gordons have otherwise failed to present a viable claim.
IV. CONCLUSION
We AFFIRM the grant of summary judgment by the district court.
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