                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                                 DEC 20, 2010
                               No. 09-15009                       JOHN LEY
                           Non-Argument Calendar                    CLERK
                         ________________________

                     D. C. Docket No. 08-22264-CV-CMA

M.D. MORAIMA TRUJILLO,
                                                             Plaintiff-Appellant,

                                     versus

FLORIDA AGENCY FOR HEALTH
CARE ADMINISTRATION (AHCA),
AHCA SECRETARY HOLLY BENSON,
in her official capacity,
VICKIE DIVENS, individually,
FLORIDA DEPT. OF LEGAL AFFAIRS,
BILL MCCOLLUM, in his official as
Attorney General of the State of Florida,
et al.,

                                                          Defendants-Appellees.

                         ________________________

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

                              (December 20, 2010)

Before EDMONDSON, HULL and ANDERSON, Circuit Judges.
PER CURIAM:

       Plaintiff-Appellant Moraima Trujillo, M.D., appeals the grant of summary

judgment in favor of Defendant-Appellee David Bremson in Plaintiff’s section

1983 lawsuit, 42 U.S.C. § 1983. No reversible error has been shown; we affirm.

       After an investigation by the Florida Agency for Health Care Administration

(“FAHCA”), Dr. Trujillo was referred to the Medicaid Fraud Control Unit and a

criminal investigation commenced. Defendant Bremson was assigned as the lead

investigator; and Bremson signed the affidavit in support of Dr. Trujillo’s arrest.

Dr. Trujillo was charged with two first degree felonies: organized scheme to

defraud the Medicaid and Medicare Programs and grand theft. Dr. Trujillo was

acquitted by jury verdict of both charges. Dr. Trujillo brought this section 1983

suit against Bremson for malicious prosecution.1

       Bremson’s affidavit in support of Dr. Trujillo’s arrest stated that the

investigation was predicated upon a complaint received by the FAHCA that

suggested that Dr. Trujillo, a licensed physician who regularly treated her

psychiatric patients with “atypical antipsychotics,” may have billed for services not


       1
         The amended complaint also named the FAHCA and the Florida Department of Legal
Affairs as defendants; it alleged, among other things, violations of the First, Fourth and Eighth
Amendments. The district court concluded only a claim for malicious prosecution was pleaded
sufficiently against Bremson; the other defendants and claims were dismissed. Plaintiff takes no
issue with the district court’s limitation of her suit to Bremson on the malicious prosecution
cause of action.

                                                2
rendered or allowed others to bill for services she did not provide.2 The

investigation revealed that, during the relevant period, Dr. Trujillo was employed

by several hospitals and clinics in different capacities. The affidavit noted that Dr.

Trujillo held two full-time positions: she was employed full-time as the Medical

Director for New Horizons Mental Health Center (“New Horizons”) and was also

working as a full-time employee of the Department of Veterans Affairs (“VA”). In

addition, Dr. Trujillo worked part-time as the Medical Director for Passageways

Residence of Dade County (“Passageways”), was the Medical Director of Horizon

Management at Larkin Community Hospital (“Horizon Health”), and maintained a

private practice. These part-time endeavors also generated bills to Medicaid and

Medicare for services rendered by Dr. Trujillo.

       Bremson’s affidavit set out an analysis of Dr. Trujillo’s hours based on

official Medicaid and Medicare records, time sheets from the VA, New Horizons

and Passageways, and Horizon Health Request for Payment Sheets submitted by

Dr. Trujillo. Based on these sources, Bremson concluded that Dr. Trujillo worked

over 20 hours per day on 207 days in 2004; many of these days showed Dr.



       2
         At the outset of the investigation, Dr. Trujillo was suspected of duplicative billing and
over-prescription of antipsychotic medication. No probable cause to arrest arose from that phase
of the investigation. Bremson continued to investigate Dr. Trujillo about other potentially
fraudulent practices; as a result of this later phase of the investigation, Bremson signed the
affidavit in support of Dr. Trujillo’s arrest.

                                                3
Trujillo working in excess of 24 hours per day. Bremson supplemented this

statistical analysis with interviews of personnel at each billing entity. As a result

of his investigation, Bremson attested that he had probable cause to believe -- and

did believe -- that Dr. Trujillo committed organized fraud and grand theft. Dr.

Trujillo contends that Bremson’s conduct was born of “personal spite, reckless

disregard for or conscious indifference” to her rights.

      The district court opinion set out correctly the standard to establish a federal

malicious prosecution claim under 42 U.S.C. § 1983. Among other things, to

prevail on her claim Dr. Trujillo was required to show the absence of probable

cause for her arrest. See Kjellsen v. Mills, 517 F.3d 1232, 1237 (11th Cir. 2008)

(“Because lack of probable cause is a required element to prove a § 1983 claim for

malicious prosecution in violation of the Constitution, the existence of probable

cause defeats the claim.”).

      “Probable cause to arrest exists when an arrest is objectively reasonable

based on the totality of the circumstances.” Kingsland v. City of Miami, 382 F.3d

1220, 1226 (11th Cir. 2004). When the facts and circumstances within a law

enforcement official’s knowledge are sufficient to warrant a reasonable belief that

the person being investigated has committed or is about to commit an offense, the

standard for probable cause to arrest is satisfied. See Skop v. City of Atlanta, GA,



                                           4
485 F.3d 1130, 1137 (11th Cir. 2007).

      Dr. Trujillo contends that her work for various entities in upper management

roles was explained to Bremson; he -- and any reasonable person -- would have

realized that she was over billing no one, if her management status had been

considered appropriately and had supervisory personnel at these entities been

questioned in a less leading fashion. According to Dr. Trujillo, Bremson failed to

perform a constitutionally sufficient investigation to support a finding of probable

cause. Citing Kingsland, Dr. Trujillo argues that a reasonable jury could find from

the record evidence that the foundation for probable cause asserted by Bremson

was either pretextual or the result of the willful failure to consider exculpatory

evidence and, therefore, summary judgment was granted wrongly.

      In Kingsland, we recognized that police officers objectively “should not be

permitted to turn a blind eye to exculpatory information that is available to them

and instead support their actions on selected facts they chose to focus upon.”

Kingsland, 382 F.3d at 1228. We explained that “a police officer is not required to

explore and eliminate every theoretically plausible claim of innocence before

making an arrest,” id. at 1229; but an officer may not “conduct an investigation in

a biased fashion or elect not to obtain easily discoverable facts.” Id. (internal

quotation and citation omitted). Under the facts of that case, we reversed a grant of



                                           5
summary judgment in favor of police officers after we concluded that a reasonable

jury could find that the officers’ investigation was constitutionally deficient; a

reasonable jury could find that the officers’ failure to uncover reasonably

discoverable material information relevant to the probable cause determination was

the product of a conscious and deliberate decision made to protect a fellow officer.

      As the district court explained, Dr. Trujillo’s reliance on Kingsland is

misplaced; the material facts of Kingsland are different from the instant case. The

plaintiff in Kingsland alleged fabrication of evidence and supported that allegation

with a host of facts and circumstances that rendered the integrity of the

investigation questionable. In contrast, Dr. Trujillo proffered no evidence of

fabrication; instead, she argues that Bremson ignored exculpatory evidence, failed

to access the best documentary evidence available, and asked witnesses

hypothetical and leading questions. But again as the district court explained, the

only exculpatory evidence Bremson allegedly ignored was Dr. Trujillo’s own

statement that he should discount hourly computations because of her upper level

management status at two of her employing facilities. Even when, for purposes of

summary judgment, we credit Dr. Trujillo’s upper management explanation for

some of the hours calculated, probable cause is not undercut: the evidence of an

impossibly long workday is not negated.



                                           6
       Notwithstanding Dr. Trujillo’s claims of “copious and dramatic evidence”

showing the falsity of Bremson’s probable cause affidavit, record cites point us to

little in the way of facts supporting her conclusory allegations. It may be that

Bremson performed a less than perfect investigation -- we do not say; but, given

the totality of the facts and circumstances within Bremson’s knowledge, no

constitutionally deficient probable cause has been shown. That a jury found Dr.

Trujillo not guilty of criminal charges fails to support Dr. Trujillo’s claims; the

standard of guilt beyond a reasonable doubt is far more exacting than that required

to establish probable cause.

       Dr. Trujillo argues that the district court erred by granting summary

judgment based on Bremson’s affidavit in support of summary judgment because

the information contained and otherwise referenced therein was hearsay. Dr.

Trujillo is mistaken. The affidavit is not hearsay; it is not offered to prove the facts

stated therein but is offered to show what Bremson knew when he submitted the

probable cause affidavit.

       Because we conclude that no constitutional deficiency has been shown, we

need not consider the applicability of the defense of qualified immunity.3


       3
         As we have said, the information Bremson had about Dr. Trujillo’s billing hours --
which often exceeded 24 hours in a single day -- would cause a prudent person to believe, under
the circumstances, that Dr. Trujillo had committed an offense; probable cause has been shown.
In the context of qualified immunity, a lesser standard -- arguable probable cause -- would apply.

                                                7
       AFFIRMED.




See Grider v. City of Auburn, Ala., 618 F.3d 1240, 1257 (11th Cir. 2010) ( “To receive qualified
immunity, an officer need not have actual probable cause, but only ‘arguable’ probable cause.”).

                                                8
