              Case: 12-13196       Date Filed: 04/01/2013    Page: 1 of 11


                                                            [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-13196
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 6:10-cv-01104-ACC-KRS


WILLIAM ADAMS,

                                                                     Plaintiff-Appellee,

                                         versus

CITY OF ORMOND BEACH,
a municipal corporation, et al.,

                                                                             Defendants,

GREGORY STOKES,

                                                                  Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                     (April 1, 2013)
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Before TJOFLAT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Gregory Stokes, an officer of the Ormond Beach Police Department

(“OBPD”) in Volusia County, Florida, appeals the district court’s ruling denying

him summary judgment on qualified-immunity grounds in William Adams’s pro se

civil action brought under 42 U.S.C. § 1983 and state law. For the reasons set

forth below, we affirm the district court’s denial of Stokes’s motion for summary

judgment on qualified immunity grounds.

                                         I.

      In Adams’s verified complaint, he stated that he agreed to remodel the home

of Kenneth King, and Adams completed a substantial amount of work on the

home. However, Adams stopped working on the home when King refused to pay

him for agreed-upon work. Adams stated that, with Stokes’s assistance, King filed

a complaint against Adams at the OBPD, and King claimed in the complaint that

Adams never performed any work on the home, despite King paying Adams

$2,500. As a result of King’s false complaint, Stokes submitted an affidavit in

May 2008 that requested Adams’s arrest for grand theft and exploitation of an

elderly person, and Adams was arrested. The Florida State Attorney’s Office

charged Adams with grand theft, but later dismissed the charges. Adams claimed

that his constitutional rights were violated by King and Stokes fabricating


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evidence, and Adams raised a § 1983 conspiracy claim and a

malicious-prosecution claim against King and Stokes.

      Stokes filed a motion for summary judgment, seeking qualified immunity as

to Adams’s federal claims, and Stokes argued that he had arguable probable cause

to arrest Adams. According to Stokes, he called Adams on the telephone in April

2008 to investigate King’s complaint with the OBPD, and Adams stated that he

would repay King the money owed in two weeks. In May 2008, King returned to

the OBPD and indicated that Adams had not repaid King the money owed. Thus,

Stokes completed an affidavit summarizing the contents of his earlier telephone

conversation with Adams and recommending that Adams be charged with grand

theft and exploitation of the elderly, and Stokes forwarded the affidavit to the State

Attorney.

      Adams opposed Stokes’s summary judgment motion and disputed the

contents of the telephone conversation. According to Adams, he had informed

Stokes that “work was stopped because King refused to compensate [Adams] for

extra completed work.” Adams then indicated that he would have to call Stokes

back after obtaining Adams’s paperwork concerning the matter. Thus, based on

the April 2008 telephone conversation, Adams argued that Stokes could not have

had arguable probable cause to believe that Adams had committed grand theft or

exploitation of the elderly.


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      The district court granted Stokes’s motion for summary judgment as to

Adams’s claims against Stokes in his official capacity, but denied Stokes’s motion

as to the claims against him in his individual capacity because Adams had

demonstrated that his clearly-established constitutional rights were violated. The

court found that, based on Adams’s version of events, Stokes could not have

reasonably believed that Adams committed the relevant offenses because Adams

“told Officer Stokes that he performed work at King’s property in exchange for the

$2,500.” Thus, neither actual nor arguable probable cause existed for Adams’s

arrest, and Stokes was not entitled to qualified immunity.

                                         II.

      On appeal, Stokes argues that the district court’s conclusion—that arguable

probable cause did not exist for the arrest of Adams—was based on an erroneous

factual premise. Specifically, the court found that Adams had informed Stokes that

Adams had performed work in exchange for $2,500, but Adams admitted in his

deposition that he did not actually perform the contracted-for work. Rather,

Adams stated that he simply told Stokes that King owed him money and that

Adams would obtain his paperwork before discussing the matter further with

Stokes. Next, Stokes argues that, even based on Adams’s version of the facts,

there was at least arguable probable cause for Stokes to complete the May 2008

affidavit that indicated that Adams should be charged with grand theft and


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exploitation of the elderly based on the facts that Stokes knew in 2008. Stokes

further argues that Adams’s version of events was not corroborated by any other

evidence, and thus, Adams’s testimony alone should not be the basis for defeating

Stokes’s qualified-immunity defense.1

       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

of the plaintiff and then addressing the legal question of whether the defendant is

entitled to qualified immunity under the plaintiff’s version of the facts. Case v.

Eslinger, 555 F.3d 1317, 1324-25 (11th Cir. 2009). With the facts so construed,

we have the plaintiff’s best case before us, and thus, genuine disputes as to

material fact are not a factor in our analysis of qualified immunity. Id. at 1325; see

Fed.R.Civ.P. 56(a). Generally, a plaintiff’s testimony cannot be discounted on

summary judgment unless it is “blatantly contradicted by the record, blatantly

inconsistent, or incredible as a matter of law, meaning that it relates to facts that

could not have possibly been observed or events that are contrary to the laws of

nature.” Feliciano, No. 12-11397, manuscript op. at 3-4, 18-19.


       1
          Contrary to Adams’s argument, we have jurisdiction over this interlocutory appeal
because this appeal is based, in part, on a question of law, that is, whether the district court erred
in determining that Stokes was not entitled to qualified immunity under a given set of facts. See
Feliciano v. Acosta, No. 12-11397, manuscript op. at 12 n.3 (11th Cir. Feb. 5, 2013) (providing
that we have jurisdiction where the district court’s denial of qualified immunity is based, even in
part, on a question of law). Moreover, in the course of deciding an interlocutory appeal, we may
resolve any factual issues that are part of the core legal issues, including whether the district
court properly viewed the evidence in the light most favorable to the plaintiff. Id.
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      When asserting the affirmative defense of qualified immunity, an official

must first establish that he was engaged in a discretionary function when he

performed the acts at issue in the plaintiff’s complaint. Holloman ex rel. Holloman

v. Harland, 370 F.3d 1252, 1263-64 (11th Cir. 2004). If the official satisfies his

burden of proof to show that he was engaged in a discretionary function, the

burden shifts to the plaintiff to show that the defendant is not entitled to qualified

immunity. Id. at 1264. To do so, the plaintiff must prove that: (1) the defendant

violated a constitutional right, and (2) this right was clearly established at the time

of the alleged violation. Id. If the plaintiff succeeds, the defendant may not obtain

summary judgment on qualified-immunity grounds. Id.

      A plaintiff can show a violation of the Fourth Amendment, made applicable

to the states by the Fourteenth Amendment, by showing that he was arrested

without probable cause. Brown v. City of Huntsville, 608 F.3d 724, 734 n.15 (11th

Cir. 2010). Probable cause is defined as facts and circumstances that would lead a

prudent man to believe that the suspect had committed or was committing an

offense. Grider v. City of Auburn, 618 F.3d 1240, 1257 (11th Cir. 2010). An

officer’s lack of corroboration through independent police work is noteworthy in

the probable cause analysis. Kingsland v. City of Miami, 382 F.3d 1220, 1229

(11th Cir. 2004).




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      To receive qualified immunity, an officer need only have arguable probable

cause to arrest, rather than actual probable cause. Grider, 618 F.3d at 1257.

However, where an officer fabricates false statements to establish probable cause

or arguable probable cause, we have held that reasonable officers in the same

circumstances and possessing the same knowledge as the defendant officer cannot

believe that probable cause existed for the arrest. See Kingsland, 382 F.3d at 1233.

Similarly, an officer violates the Constitution where he prepares a warrant affidavit

that contains omissions made intentionally or with a reckless disregard for the

accuracy of the affidavit, where inclusion of the omitted facts would have

prevented a finding of probable cause. See Madiwale v. Savaiko, 117 F.3d 1321,

1326-27 (11th Cir. 1997). A plaintiff can raise an inference of recklessness by

pointing to facts omitted from the affidavit that are clearly critical to a finding of

probable cause. Id. at 1327.

      Under Florida law, a person commits the felony offense of grand theft, inter

alia, where he knowingly obtains or uses the property of another with the intent to

permanently or temporarily deprive the person of a right to the property and causes

damage to the property in excess of $300. Fla.Stat. § 812.014(1)-(2). “Obtains or

uses” includes obtaining property by fraud, willful misrepresentation of a future

act, or a false promise. Fla.Stat. § 812.012(3)(c). Florida case law provides that,

to prove grand theft, the state must establish that the defendant had the requisite


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criminal intent at the time of the taking. See Stramaglia v. State, 603 So.2d 536,

537-38 (Fla. Dist. Ct. App. 1992). As Florida case law illustrates, a defendant does

not commit grand theft where he intended to perform a contract at the time he

entered into the contract. See, e.g., Crawford v. State, 453 So.2d 1139, 1140-43

(Fla. Dist. Ct. App. 1984) (providing that the state had not proven intent to commit

grand theft because, although a defendant did not return any of a homeowner’s

down payment on a construction contract, despite not completing any portion of

the contract, the defendant intended to perform the contract when he entered into it,

as he had purchased some materials and ordered others). The Florida courts have

indicated that, actual performance of some portion of the contract, even where

minimal, negates an intent not to perform a contract. Segal v. State, 98 So.3d 739,

744 (Fla. Dist. Ct. App. 2012). Thus, where the evidence essentially shows a

contractual undertaking that the defendant failed to complete, Florida courts treat it

as a civil matter, as contractual cases often do not lend themselves to a conclusion

that felonious intent is present at the inception of the agreement. Id.

      The felony offense of exploitation of an elderly person occurs, inter alia,

where a person who has a business relationship with an elderly person, by

deception or intimidation, obtains or uses an elderly person’s funds with the intent

to temporarily or permanently deprive the elderly person of the use, benefit, or

possession of the funds. Fla.Stat. § 825.103(1)-(2). The state must prove that the


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defendant used deception or intimidation to obtain the elderly person’s funds with

the intent to deprive the individual of those funds. See Ellison v. State, 983 So.2d

1205, 1206 (Fla. Dist. Ct. App. 2008).

      Here, the district court misstated the evidence when it stated that Adams told

Stokes that Adams “performed the work at King’s property in exchange for the

$2,500.” Rather, in Adams’s affidavit that he filed in opposition to Stokes’s

motion for summary judgment, Adams stated that he told Stokes that Adams

stopped working at King’s residence “because King refused to compensate

[Adams] for extra completed work.” However, this statement by Adams did not

provide Stokes with arguable probable cause to believe that Adams had committed

grand theft or exploitation of the elderly, as no reasonable officer, after hearing

Adams’s statement could believe that Adams had committed the relevant offenses

under Florida law. See Grider, 618 F.3d at 1257. Adams’s statement showed that

he intended to perform the contract at the time he entered into the contract and

showed that he did not deceive King at the time Adams obtained King’s money.

There is no evidence that Stokes asked King about whether King was aware of a

dispute about money for additional work outside the scope of the contract. Further,

there is no evidence showing that Stokes ever attempted to call Adams back in

May 2008 to inquire further into King’s complaint, despite Stokes’s ability to

contact Adams in April 2008. In their answers to Adams’s interrogatories, Stokes


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and King state that Stokes investigated King’s complaint by visiting King’s home.

However, Stokes does not mention this fact in his affidavit filed in support of his

summary judgment motion or in the information that he forwarded to the State

Attorney’s Office. Further, based on the evidence in this case, it is unclear what

Stokes discovered upon visiting King’s home and whether his investigation

supported King’s complaint or Adams’s version of the events.

      By sending the May 2008 affidavit—that contained false information and

omitted other information that appears to have been critical to establishing actual

or arguable probable cause and that recommended that Adams be charged with

grand theft and exploitation of the elderly—to the State Attorney’s Office, Stokes

violated Adams’s clearly-established Fourth Amendment right to be free from

unreasonable seizures, as Adams was arrested on the basis of the information in the

affidavit. See Brown, 608 F.3d at 734 n.15; see also Grider, 618 F.3d at 1257.

Although Stokes argues that Adams’s testimony alone should not be sufficient to

defeat summary judgment on qualified-immunity grounds, a case should be put to

the jury where there is any genuine issue of material fact, even where the issue is

created solely by the testimony of the party. See Feliciano, No. 12-11397,

manuscript op. at 3-4 (noting the “modern rule” that a case should be put to the

jury where there is any genuine issue of material fact, including one created solely

by the testimony of a party). Thus, at this stage in the proceedings, where we must


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accept Adams’s version of events as true, Stokes is not entitled to qualified

immunity.

      For the foregoing reasons, we affirm the district court’s denial of Stokes’s

motion for summary judgment on qualified immunity grounds.

      AFFIRMED.




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