Dewey O. Mays, Jr., M.D. v. City of Dayton

vestigation marriage whether Dedhia’s with “clear” or into synonymous is met. Plain Olano, at 113 S.Ct. was a sham. “obvious.” Supreme Court at 1777-78. Johnson rulings In view of in Johnson and as this —where the “in a case such

held that Frost, we conclude the error committed trial was settled and at the time of the law in failing the district court to submit the contrary to the law at time clearly materiality jury question of to the was not ‘plain’ appeal enough that an error —it grant reversible error and that the of a new consideration,” appellate at the time of unnecessary. trial was therefore — plain. error was found that Gaudin at-, at 1549. CONCLUSION remaining prongs two Assessing the above, For the reasons set out we RE- “affecting the An error is more difficult. judgment of the district court VERSE rights” has been de substantial defendant’s jury and REINSTATE the verdict on all ... by the court as “error scribed Olano RE- counts of the indictment. The case is outcome of the district affected the [that has] to the court for MANDED district sentenc- proceedings.” 507 U.S. court ing. Even if the defendant S.Ct. at 1777-78. of such could establish the existence this case error, requirеd he would still be prejudicial prejudicial that show that the error was so fairness, integrity, “seriously a£feet[ed]

it judicial proceedings.” public reputation of or materiality is Because the evidence of Id. Dewey MAYS, Jr., M.D., O. et case, overwhelming in this we conclude al., Plaintiffs-Appellees, prongs simply cannot be the third and fourth met. by the recent are led to this conclusion We DAYTON, al., et Defendants- CITY OF decision, no in which this court found

Frost Appellants. the mate- plain in the failure to submit error No. 96-3464. jury on a count of riality element grand jury making a false declaration to Appeals, United States Court 1623). (a § violation of U.S.C. Circuit. Sixth Frost, plain error 387. we followed Argued June 1997. analysis set forth in United States John- son, post-Johnson panels in this as the other 23, 1998. Decided Jan. reviewing have done in Gaudin er- circuit Rehearing Rehearing Suggestion for rors, mate- plain found no error because 6,1998. En Banc Denied riality controverted and the had not been materiality overwhelming. 125 F.3d at 386-87. “[although

The Frost court held capacity must have the false statement decision, have to be it does nоt influence to be material.” actually influential order standard, then, 125 F.3d at Under find that the false docu- we need not even investigators, but the INS ments influenced could have influ- only that the documents regularly that the INS enced them. Given reviewing perma- considers such evidence residency applications, these documents nent in- clearly capacity to influence their had

OPINION

WISEMAN, Judge. District Appellant, Gary Gabringer, appeals the summary judg- district court’s denial of his upon immunity ment motion based a failure to find cause for a and Gаbringer search warrant For ‍​​‌​‌‌‌​​‌​​‌​​​‌​​​​​‌​‌​​‌‌​‌‌‌‌​​​‌‌‌​‌​‌​​‌‌‍the executed. below, reasons we stated REVERSE judgment of court. the district I. appeal

This stems from search of the place Dewey Mays, of Dr. of business 0. Jr. (Dr. Mays).1 Mays practices Dr. medicine Day- in from an office at Salem Street ton, Mays Dr. num- Ohio. treats a substantial compensa- of workman’s ber Medicare and recipients. payment tion benefit Claims for for services rendered to Medicare and work- compensation patients man’s must submit- Department in accordance with of ted U.S. rеgulations. Human Health and Services wife, Mays employs Ruby Mays, his Dr. and sister-in-law, Jenkins, his Doris in his medi- 1989, Dewey Mays, cal office. III III”), son, Mays’ (“Mays began assisting Dr. Mays practice. Although father in the his practice III had not obtained a license to Ohio, practice in he was licensed to medicine Kentucky. in Tennessee and medicine Smiley, (argued A. Charles Jr. Gary February Detective Ga- Associates, briefed), Day- Smiley & Charles bringer Dayton Department Police of the ton, OH, Plaintiffs-Appellees. for Mays III was traf- received information ficking pills drug prescriptions. De- (briefed), Lynch F. Freund Jane M. Neil Gabringer corroborated this informa- tective (briefed), Freund, (argued), Lisa A. Hesse investigation through tion an undercover Arnold, OH, Dayton, for Defen- Freeze & Gabringer Detective received during which dants-Appellants. III for stereo pills Mays return Mays writing III equipment and observed COLE, Circuit Before: SILER pads. Mays’ prescription on Dr. prescriptions WISEMAN, Judge.* District Judges, and De- investigation, During the course of a simulta- Gabringer tective became aware WISEMAN, D.J., opinion Mays for investigation of of Dr. delivered neous federal SILER, J., court, joined. Agent fraud under the direction which Department COLE, 817), (p. separate Craig Morton of J. delivered Human Services. opinion. Health and concurring Jr., Wiseman, provide the basis time of the events that 1. At the *The Honorable Thomas A. Mays Mays practicing appeal, Dr. was medi- for this Judge for the Middle District Stales District appeal Dayton. died while this cine was Tennessee, sitting by designation. pending. compensation cases Medicare and workman’s III arrested on December Mays applicаtion. was attached drug trafficking, sched- aggravated arrest, to his Subsequent ule II cocaine. As a basis for Detective belief routinely father Mays police that his III told probable cause to search 2114 that he had patients only prescriptions for seen wrote Street, Gabringer a number Salem recounted III, patients these were that some of supporting pertinent facts his affidavit that Medi- patients, and Welfare/Medicare application.2 the second search warrant office visits sometimes billed for care was information, Dayton Munici- Based prescription renewals patients received when judge pal Court determined by Mays. being seen Dr. On Decem- cause existed and authorized a warrant warrant, pursuant police ato ber premises search the Salem Street. and seized the searched Salem Street The search warrant was executed under thirty Mays III indicat- patients files of who Gabringer of Detective on March direction 29,1990, patients. resulting desig- ed were his One of these files the seizure of the ap- patient patient that Ralston whose name had 502 files and records of of Leon nated appointments preceding peared sold to Detective Ga- for fifteen prescriptions on investiga- months. bringer during the course of the

tion. Mays, Ruby Mays, Dr. and Doris Jenkins 1981,1983,1986 §§ suit under 42 filed U.S.C. Morton, by Agent Accompanied Detective 1988, claiming police that this search and and pa- several of these Gabringer interviewed before after the search vio- surveillance and They they that tients. verified had received rights §§ 42 lated thеir U.S.C. Mays an prescriptions from Dr. based on 1983, 1986, Fourth, Fifth, 1988 and the and by Mays III that initial examination allege Fourteenth Amendments. Plaintiffs prescriptions often with- their were refilled police these violations occurred when addition, patient out examination. one office, Mays’ they searched Dr. medical as attorney they and his indicated that had re- they not have cause and as did copies patient’s file which con- ceived the search in an conducted unreasonable discrepancies indicating that tained some manner. Named as Defendants were Ga- file had been altered. bringer, City Dayton, E. James New- Police), by (Dayton’s Dewey former Chief of Gabringer ap- In March Detective III, Mays and Tim Sucher. 2114 plied for a second warrant to search for and workman’s Gabringer, Newby, City Dayton Salem Street Medicare and the files, (“the Defendants”) compensation appointment as Dayton well as for sum- moved showing patient appointments mary judgment grounds, books from on a number of January present. including Gabringer’s 1988 to The affidavit entitlement to application immunity. filed in of this indicated The district court denied sum- (1) mary qualified immunity judgment that at least three offenses had occurred: issue, practice surgery Gabringer or was not medicine without entitled (3) (1) (2) fraud; license; qualified immunity traffick- because: the affida- by ing drugs. patient Gabringer A list of 502 files vit filed for the establish, payment derived from claims made for search warrant failed to as a mat- Mays July although 2. These facts included: Ill’s statement to visit on the notation for (Dr. Mays) police routinely his father wrote only "prescriptions”; that date indicated inter- prescriptions patients that, he did examine out for patients although pre- views with verified personally; Mays Ill’s statement that Medicare scriptions Mays, pa- were received from Dr. patients filed for came to the claims were who by or examined Dr. tients were seldom seen prescriptions being office and received without Mays; from a "reli- written information received by Mays; seen Dr. flies seized in the earlier person, a Medi- able” source stated that a third pa- search of 2114 Salеm Street indicated that source, pre- patient care known to the received by Mays tients seen examined III included and/or or, scriptions Mays seeing Dr. without him compensation both workman’s and Medicare by Mays, being examined if seen claimants; Leon file indicated that a Ralston’s him; and other relevant facts. claim had been made for an intermediate office

813 circuit, immunity questions are resolved law, cause that Dr. ter of being possible stage litigation. investi- the offenses at the earliest one of committed (6th (2) material fact genuine Haydon, issue of Poe v. Cir. gated; alleged- 1988). omission of to whether the existed as from the affidavit ly exculpatory material To overcome a defendant’s motion in Franks v. rule established

violated the summary upon qualified judgment based Delaware, (1) immunity, plaintiff identify must: (3) (1978); 'plaintiffs’ L.Ed.2d clearly right alleged established to have been by patients who ob- submission affidavits (2) violated; and establish that a reasonable Mays’ of Dr. office police surveillance served position officer the defendant’s should disparaging remarks about and heard have known that the conduct at issue was po- patients his unidentified plaintiff and right. ‍​​‌​‌‌‌​​‌​​‌​​​‌​​​​​‌​‌​​‌‌​‌‌‌‌​​​‌‌‌​‌​‌​​‌‌‍Pray undertaken in violation of that genuine to raise a lice officers was sufficient Sandusky, Cir. Day- material fact as to whether issue of 1995). reviewing qualified immunity harass, intimi- ton Defendants continued determination, this Court must first deter date, plaintiffs threaten after the or plaintiffs mine have a claim whether stated 1990 search. against pursuant the defendant to U.S.C. appeals to this Gabringer now Detective § demonstrating the violation of a con portion the district court’s that Court right. stitutional If the court finds no valid he was not entitled judgment which held that 1983, § pursuant claim to 42 U.S.C. the court quali- summary judgment on the basis of immuni qualified need not reach the issue of follow, immunity. the reasons that fied For (6th Conklin, ty. Carlson v. 813 F.2d 769 judgment of the district court we reverse the Cir.1987). case, In if the court this deter summary judgment in grant on this issue probable Gabringer mines that Detective had Gabringer. favor of warrant, cause sufficient to obtain a search fails, § plaintiffs’ 1983 claim and the issue of II. Gabringer quali whether Detective receives summary This court reviews the denial immunity fied becomes moot. immunity grounds qualified judgment on claim, plaintiff § To assert a 1983 must novo, as of this doctrine is de deprived right prove that he was secured Zieba, 4 v. F.3d question of law. Mumford or the laws of the United the Constitution Cir.1993). (6th 429, 432 deprivation that the was caused States and acting in his role of law en While acting color of person who was officer, Gabringer presumptively forcement Bros., Brooks, 436 Flagg state law. Inc. v. immunity in the receives for acts committed 1733-34, 149, 155-57, 56 U.S. officials course of his duties. “[Government (1978). case, In L.Ed.2d 185 the instant perform discretionary general functions who plain- of whether requires a determination liability civil ly are shielded from dam rights were violated tiffs’ Fourth Amendment not violate ages insofar as their conduct does 29, 1990 search of as a result of the March statutory or constitutional clearly established The search violated 2114 Salem Street. person would rights of which a reasonable only if warrant plaintiffs’ rights the search Fitzgerald, v. 457 have known.” Harlow sup- 1990 was not executed on March 800, 818, 102 73 ported by probаble cause. “objective This reason L.Ed.2d 396 whether the ableness” standard focuses on III. thought reasonably could have his defendant Plaintiffs claim that rights with the actions were consistent their Jr.’s office violated violated. If the 1990 search plaintiffs claim have been right to be free from Fourth Amendment has acted in a manner government official to an and seizures due plaintiffs rights, unreasonable searches reasonably consistent with probable cause in ob showing of immunity protects that official from insufficient We find taining the warrant for that search. those actions. resulting civil suit wrongdo- person absolutely any innocent of probable Gabringer did have that Detective warrant, under a ing may a search nevertheless be searched to obtain cause sufficient court. holding of the district Id. contrary to the valid warrant. exists for a search warrant Probable cause A determination of cause are such if facts and circumstances “the simply of whether requires consideration prudent person would be war reasonably grounds there were rеasonable to believe believing that an offense had been

ranted of the affidavit that the law was time that evidence thereof would committed and premises to be being violated on premises to be searched.” be found on Eisner, 297 F.2d searched. U.S. (6th Reeves, 80 F.3d Greene (6th denied, Cir.), cert. Cir.1996) Besase, (quoting States v. (1962); see also U.S. v. 8 L.Ed.2d Cir.1975)). 1306, 1307 (6th Cir.1985) Loggins, analysis, court lengthy In a the district a fair (probable cause exists when there is that Detective affi determined totality probability, given the of the circum information sufficient to davit did contain that contraband or evidence of a stances necessary to cause ob particular place). in a crime will be found holding, tain a search warrant. so adequate court cited the absence of links determining court erred The district crimes, alleged Mays, between Mays per- that the lack of evidence that Dr. sought the search. Because the evidence sonally committed a crime invalidated the that the did the district court found affidavit magistrate All that search warrant. nature of the not contain information must find in order to issue a warrant probability that illegal drugs, nor on the all probable cause that of a crime files could contain evidence of 502 seized would be found the site be searched. fraud, nor the files had determining sup- a whether warrant III, Mays to the court concluded connection cause, ported by probable pays this Court probable for the warrant that cause search issuing magistrate’s “great deference” to the Mays City Day v. was not demonstrated. of probable as to and reс- determination cause (S.D.Ohio ton, C-3-92-002, slip op. at 15 No. ognizes finding that such a not set should be 18, 1996). arbitrarily v. aside unless exercised. U.S. analysis The district court based its (6th 363, Cir.1993); Goff, 6 366 see also F.3d probable upon an of cause erroneous under Gates, 213, Illinois v. 462 U.S. 103 S.Ct. specificity required standing of the law. The (1983) (determination 527 76 L.Ed.2d by Fourth is not as to the the Amendment up- by issuing magistrate judge the will be person against the is to be whom long magistrate judge held so as the had a place rather as to the to be used but concluding a substantial basis that search thing v. searchеd and the to be seized. U.S. wrongdoing). uncover evidence of would Cir.1975) Besase, (6th 1307 (internal omitted). reviewing Upon proper citations When de novo review and with def- judge’s application, issuing an courts must bear in mind that erence to the determination directed, cause, persons, probable at of that warrant search warrants are not we find the property probable supported where there is to search 2114 Salem Street was but by probable Specifically, regulations cause to believe that instrumentalities or evi cause. claims, governing dence of crime will be found. Zurcker v. statements made Daily, by Mays patients concerning III various 436 U.S. 98 S.Ct. Stanford (1978). sup practices, discrepancies The in office as well as be- 56 L.Ed.2d 525 affidavit present activity previous- in port of the warrant need not infor tween medical noted files filed, justify ly mation that would arrest of the seized and claims indicate that the the possession by Mays’s in Dr. office not individual in of or control of the claims filed did property. property comply pertinent rеgulations. the Ac- Id. The owner of the with suspected having cordingly, the not violate the be searched need not be search did Property plaintiffs’ rights a constitutional and we need committed crime. Id. owned (6th Cir.1997). Gabringer’s This court that al- the issue of Detective reasoned not reach immunity. lowing challenged omissions to be would cre- every ate a situation where almost affidavit IV. Id. questioned. of an be officer would denying As an alternative basis for a Franks apply analysis, Rather than summary judgment, the district court held court, apрarently misconstruing district genuine issue of material fact existed that Franks, meaning imputed the rationale of affidavit failed to include as to whether the Brady Maryland, v. 373 U.S. exculpatory information viola potentially 1194, 10 (1963), L.Ed.2d into the warrant Delaware, tion of Franks 438 U.S. application process. This is clear error as (1978). 2674, 57 L.Ed.2d 667 The dis process significantly the warrant differs trict court found that Detective process. the trial attempted of the fact that he had omission unsuccessfully to write a get Affidavits search warrants prescriptiоn for him and his wife raised the normally by nonlawyers “are drafted potential of a Franks violation. It also held investigation.” midst and haste of a criminal warrant that whether or not the Ventresca, 102, 108, United States v. probable cause was a omitted fact showed 741, 746, 13 L.Ed.2d 684 An fact, preempting the question of material expected affiant cannot to include an summary judgment. granting of every piece gathered affidavit of information Franks, party that a the Court held investigation. in the course of an may only challenge veracity аn affida Colkley, States party vit if that can make “substantial Cir.1990). Clearly an affidavit should not be showing preliminary false statement formalities, judged long as as intentionally knowingly and or with reckless cause is evident. truth, disregard for the was included The district court’s inference the due affidavit,” warrant and that the affiant process protection provided to defendants allegedly necessary for a false statement Brady applies prior to trial under cause. Id. of Franks process guise warrant inquiry The S.Ct. at 2676-77. does subject analysis, thereby entitling the of a if exclusion continue the court finds warrant to disclosure of informa search allegedly false statement does not potentially contradicting finding tion probable in a lack of cause. If the result cause, particularly probable concerns this burden, party meeting succeeds in the Brady progeny and its established if Court. party hearing is entitled to a to determine prosecutor’s duty the to disclose to the defen supports the preponderance of the evidence evidence, Id. While this veracity. exculpatory defined as materi allegations ‍​​‌​‌‌‌​​‌​​‌​​​‌​​​​​‌​‌​​‌‌​‌‌‌‌​​​‌‌‌​‌​‌​​‌‌‍of lack of dant any allegedly bearing upon ease does not involve false al that would have a statements, previously have held that the guilt we innocence of the defendant. or Maryland, Franks doctrine applies 83, 87, to omissions of infor Brady v. 373 U.S. mation from affidavits as well. United 1194, 1196-1197, (1963); 10 L.Ed.2d Bonds, v. States 568-69 97, 112-13, Agurs, United States v. U.S. Cir.1993). 2392, 2401-02, 49 L.Ed.2d 342 Bagley, (1976); v. United States 473 U.S. may Franks hearing A be merited when 667, 678, 105 87 L.Ed.2d S.Ct. applica- in a warrant facts have been omitted rule, process, This derived from due tion, only but in rare instances. This Court trials, protecting helps fair criminal to ensure Atkin, held U.S. recently that affidavits presumption innocence for the ac omissions, potentially while not with material cused, present forcing while the state to immune from Franks inquiry, much less are Bagley, proof beyond a reasonable doubt. likely to merit a Franks hearing than are 3380; Brady, at 105 S.Ct. at including allegedly false state- affidavits Atkin, 83 S.Ct. at 1196-97. ments. 1217 373 U.S. contrast, By process cause imposed by determina- should not be inference Franks, application process. tion in frоm the Fourth onto the warrant derived Amendment, adjudica- involves no definitive Brady process To interweave due ra- guilt tion of innocence or and has no due application proceedings tionale into warrant process implications. Because the conse- require potentially exculpatory and to that all quences of arrest or search are less severe affidavit, places evidence be included in an an remedy consequences and easier to than the extraordinаry on burden law enforcement of- verdict, duty to of an adverse criminal ficers, compelling up them to follow in- exculpatory potentially disclose information every clude in a warrant affidavit hunch and appropriate setting protect of a trial investigation detail of an attempt the futile process rights the due of the accused is less prove negative proposition that no compelling in the context of an potentially exculpatory evidence had been ex- for a warrant. sсenario, every cluded. Under such a search swearing par- would result contest with imposed by Brady The duties and Franks ticipants arguing after the fact over whether context, Brady differ further. exculpatory evidence even existed. obligation to constitutional disclose material exculpatory regardless information attaches reasons, For these as well as to re prosecutor’s of the intent and constitutional resulting prior opin solve confusion error can without a be found demonstration ions, except very we reiterate that in the rare culpability. Agurs, of moral 427 U.S. at case where the strong defendant makes a violation, at 2400-01. A Franks preliminary showing that the affiant with an however, intent, require showing does intention to mislead excluded critical infor i.e., a “deliberate falsehood” or “reckless dis- affidavit, mation from the and the omission is Franks, regard for the truth.” 438 U.S. at finding cause, critical to the 171, 98 S.Ct. at 2684. inapplicable Franks to the omission of disputed facts. “overriding

Whereas the concern” of Bra- dy “justice is with the guilt” that is Y. trial,

appropriate Agurs, 427 U.S. at , recognizes 96 S.Ct. at 2401 Franks The district сourt also denied sum reports may information an affiant not ulti- mary judgment plaintiffs’ they claim that accurate, mately willing and is to tolerate were harassed and intimidated after early stage such a result at that pro- 1990 search. The district court cess, long so as the affiant the accu- believed found, reasons, stating that affidavits racy of the statement at the time it was by plaintiffs opposition submitted Franks, made. 438 U.S. at 98 S.Ct. at summary judgment motion for genu raised a ine issue of material fact as to whether the Dayton Defendants continued to harass and disparate These standards of intent reflect threaten them after the search. Neither the consequences differences in the of error in plaintiffs nor the district identify court what They the two contexts. also recog- indicate “clearly right established” this claim is relat non-lawyers nition normally that the who se- or if right ed to such a in the absence exists cure warrants in the heat of a in- criminal illegal of an search. vestigation should be burdened with the duty same to assess and disclose information A by review of the аffidavits submitted prosecutor possesses as a who plaintiffs upon a mature by and relied the district knowledge of the entire case and is not sub- only plaintiffs court indicates ject pressures to the time Mays’ inherent patients some of Dr. observed what process. warrant A appeared ‍​​‌​‌‌‌​​‌​​‌​​​‌​​​​​‌​‌​​‌‌​‌‌‌‌​​​‌‌‌​‌​‌​​‌‌‍police statement of these dif- to be continued surveillance Thus, ferences does not condone deliberate mis- of 2114 Salem Street. the denial of representations in the summary judgment warrant necessarily on this issue process. (1) points Rather it out that police the obli- entails a surveillance (2) gations harassment; during adjudication shouldered constitutes harassment vio- (3) attempted unsuccessfully clearly right; get a he had to established lates prescription recognize that to write a for him would police officer would reasonable not have resulted a lack of cause. participating in the surveil- his conduct was unconstitu- lance of 2114 Salem Street no basis in the law or record

tional. We find findings and accord- of these summary judgment for the defen- ingly grant dant. LEISTIKO, Plaintiff-Appellant, Fred A. YI. reasons, foregoing judgment For the STONE, Secretary Michael P.W. and RE- the district court is REVERSED Army; Bureau; National Guard Richard with instruc- MANDED to the district court Alexander, Adjutant General, C. summary judgment in favor of tions to enter Ohio, Defendants-Appellees. State of Gabringer. Detective No. 96-3654. COLE, Judge, concurring. Circuit Appeals, States Court of majority’s opin- Although I concur in the Circuit. Sixth ion, majori- separately I write to address the Delaware, ty’s of Franks v. discussion Argued Oct. 1997. 57 L.Ed.2d 667 Decided Jan. 1998. I the district do not believe Rеhearing Suggestion Rehearing opinion thoughtful court’s misconstrued En Banc Denied March holding of that case. court majority

The states that the district Brady Maryland, imputed the rationale of 1194, 10 L.Ed.2d (1963) process. agree I into the warrant do distinguishing majority’s with the discussion process Brady protec- from the the warrant however, process; arising tions from the trial that the district court at- I do not believe Brady pro- tempted apply to the warrant cess. genuine that a issue

The district court held rule of material fact arose as to whеther the Supreme Court Franks established violated Detective omis- Although sion of information the affidavit. disagree holding I with that believe that —I state- with the addition of the omitted even ments, a matter of probable cause existed as court’s state-

law—I do not read the district attempt Franks. ments as an to redefine Franks, states, majority As the if the court finds inquiry does not continue state- allegedly false the exclusion (or ease, of material in this omission ment information) in a lack of does not result I hold that De-

probable cause. would thus fact that ‍​​‌​‌‌‌​​‌​​‌​​​‌​​​​​‌​‌​​‌‌​‌‌‌‌​​​‌‌‌​‌​‌​​‌‌‍Gabringer’s omission of the tective

Case Details

Case Name: Dewey O. Mays, Jr., M.D. v. City of Dayton

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 6, 1998

Citation: 134 F.3d 809

Docket Number: 19-1162

Court Abbreviation: 6th Cir.