Rhodes v. Robbins

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DR. STEVEN RHODES,

Plaintiff,

Case No. 3:18-cv-673-MMH-JBT

v.

DETECTIVE PAUL ROBBINS,

in his individual capacity,

Defendant.

/

ORDER

THIS CAUSE is before the Court on Defendant’s Motion for Summary

Judgment (Doc. 33; Motion), filed on October 29, 2019. In the Motion,

Defendant Paul Robbins argues that Plaintiff Steven Rhodes’ claim for

malicious prosecution under 42 U.S.C. § 1983 is barred by qualified immunity

and asks the Court to enter judgment in his favor. Rhodes filed a response in

opposition to the Motion on December 6, 2019. See Plaintiff’s Response to

Defendant’s Motion for Summary Judgment (Doc. 43; Response). Both parties

have submitted supplemental authority, which the Court has reviewed. See

Defendant’s Notice of Supplemental Authority (Doc. 41); Plaintiff’s Notice of

Supplemental Authority (Doc. 46); Plaintiff’s Second Notice of Supplemental

Authority (Doc. 47); Plaintiff’s Third Notice of Supplemental Authority (Doc.

48). Thus, the Motion is ripe for review.

I. Background

A. The Investigation

Rhodes is a chiropractic physician licensed by the state of Florida.

Robbins is a former detective with the Florida Department of Financial

Services, Division of Insurance Fraud, who investigated Rhodes and his

practice for alleged fraudulent insurance billing. See Declaration of Detective

Paul Robbins (Doc. 34-1; Robbins Dec.) at ¶¶ 2, 8-9. The investigation began

on February 4, 2014, when a former patient, “O.V., made a complaint in

reference to fraudulent billing at Ocean View Health, Inc (OVHI) by Rhodes.”

See Department of Financial Services Division of Insurance Fraud

Investigative Summary Report (Doc. 34-3; Summary Report) at

Robbins/Rhodes 000011. Among other things, O.V. reported that her

“insurance company was billed for ultrasound, massage and traction at every

visit,” but “[s]he did not have all of this treatment at every visit.” Id. Two

weeks later, David Kunz of Kemper Direct Insurance Company filed a

complaint against Rhodes. Id. “Kunz reported that his insured driver, A.N.,

was seeking treatment with Rhodes at OVHI due to injuries sustained in an

automobile accident. Kunz reported that OVHI [was] billing for manual

therapy under CPT 97140 but the Subjective, Objective, Assessment, and Plan

(SOAP) notes reveal treatment by a massage therapist with an expired

massage license.” Id. After conducting an investigation, Robbins and his

colleague, Detective Murphy, concluded that Rhodes improperly billed for

therapy performed by two employees—Cynthia Perez and Lisa Jackmore—

who were not properly licensed. Id. at 000012. The detectives also concluded

that Rhodes billed for treatments, such as manual therapy, electrical

stimulation, and traction, that were never performed. Id.

The three-month long investigation “encompassed sixteen interviews,

twenty-one witnesses, and a review of billing records for seven patients.” See

Robbins Dec. ¶ 9. Among others, the detectives interviewed OVHI employee

Melissa Ross on multiple occasions in February 2014. See Supplement to

Summary Report (Doc. 34-4; Supplement) at 000093. Ross is a licensed

massage therapist and a registered chiropractic assistant; she performs

manual therapy and massages; she treats approximately 17 patients per day

at OVHI. Id. Ross told the detectives that Rhodes knew that Perez’s license

was delinquent and that Jackmore did not hold a medical or professional

license. Id. at 000094-95. Ross also stated that before August 2013, she

recorded her treatments as lasting fifteen minutes, but “after August 2013 she

was told to put thirty (30) minutes as the amount of time for treatment.” Id.

at 000096. Ross informed the detectives that Rhodes treats “around thirty (30)

patients per day. The treatment is usually ten (10) to fifteen (15) minutes on

the table for adjustment and ten (10) to fifteen (15) minutes for electrical

stimulation.” Id. In October 2013, Rhodes told Ross “to make sure her notes

on amount of therapy units [were] the same as his.” Id. at 000102. Ross

“started putting the same number of units [of] therapy to match [Rhodes’ notes]

until February 5, 2014 when [the detectives] came to the office to interview

Rhodes.” Id. Since then, Ross “has put the correct number of units on her

notes.” Id.

The detectives interviewed former OVHI employee Tammy Wilson on

February 4, 2014, and February 10, 2014. See Supplement at 000104-05,

000109-12. Wilson told Robbins that she worked for Rhodes “from October 20,

2013 until she was terminated on January 26, 2014.” Id. at 000109. According

to Wilson, “Rhodes fired her for ‘being in the way’ and not being a ‘team

player.’” Id. During her second interview, Wilson reported that after the

detectives visited OVHI, “Rhodes was ‘going crazy.’” Id. at 000104. She told

the detectives that “Rhodes then said, in regards to the fraudulent billing,

these are minor things and he actually bent the law and did not break it.” Id.

at 000105. Wilson said that she “observed Rhodes ‘re-doing’ files [] in order to

blame the third party biller.” Id.

Jessica Moseley worked for Rhodes from December 2011 to October 2013.

See Summary Report at 34. She worked in the front office and performed

therapy on patients. Id. According to the Summary Report, Moseley told

detectives that Rhodes instructed employees to bill for two units of therapy

when only one unit was performed and that patient H.C. may have been billed

for massages he did not receive. Id. at 35.

In addition to employees, the detectives interviewed the owners of two

billing companies used by OVHI. One of them, Eliot Tucker, told the detectives

that “the only thing suspicious was the amount of procedures marked on a fee

slip that would indicate the patient would have to be in the office longer.”

Summary Report at 000032. Another billing consultant, Evelyn Rivera, told

the detectives that Rhodes told her that he did not know that Perez’s license

was expired. See id. at 000048. Rivera told Rhodes that any bills submitted

under Perez would need to be reimbursed to the insurance companies and it

was his responsibility to verify Perez’s license. Id. Rivera told the detectives

that one unit of treatment is eight to fifteen minutes and two units of treatment

is hands-on treatment for thirty minutes, not including dressing or undressing.

Id.

Ultimately, the detectives determined that the evidence supported

charging Rhodes with one count of schemes to defraud and seven counts of false

and fraudulent billing regarding patients O.V., B.L., D.B., R.G., M.S./H.S.,1

1 The Affidavit for Arrest Warrant combines M.S. and H.S. in a single false and fraudulent

insurance charge.

H.C., and A.N. Four false and fraudulent billing charges and five patients—

R.G., M.S./H.S., H.C., and A.N.—are at issue in the instant Motion.

B. Affidavit for Arrest Warrant/Disposition of Criminal

Charges

On April 4, 2014, Robbins prepared and submitted an Affidavit for Arrest

Warrant (Doc. 34-2) to a county court judge. In the Affidavit for Arrest

Warrant, Robbins avers, in relevant part:

On February 2, 2014, O.V. filed a complaint in reference

to possible fraudulent billing by Chiropractic Physician

Steven Rhodes. Rhodes is the owner of Ocean View

Health, Inc[.] The complaint dates are from September

2013 to January 2014.

. . .

On February 18, 2014, another complaint was filed by

[David Kunz of] Kemper Direct Insurance Company . . .

.

The investigation revealed that Rhodes allowed Lisa J

and Cynthia P to provide treatment/therapies to

patients knowing that [Cynthia] P had an expired LMT

license and that [Lisa] J was not licensed. [Cynthia] P

and [Lisa] J provided treatment, which required being a

Licensed Massage Therapist or a Registered

Chiropractic Assistant. By doing so, bills were

submitted to numerous insurance companies for

services that should not have been performed.

The investigation revealed Rhodes was submitting his

notes for billing which indicated more units of treatment

than what was actually provided. Rhodes also directed

Melissa R to show more units of manual therapy

treatment on her notes so it matched what Rhodes put

in his notes. [Melissa] R would put two (2) units of

therapy although she only provided one (1) unit.

By doing this Rhodes caused bills to be submitted to the

insurance companies for services that were not

rendered.

. . .

During the investigation seven (7) patients were

interviewed. All of the patients had unauthorized

billing submitted to their insurance companies for

treatment/therapies they never received.

. . .

[As to R.G., there] was _____ in unauthorized bills

submitted to State Farm for Traction Therapy and

Manual Therapy. R.G. said she never started receiving

traction therapy until February 2014.

[As to M.S. and H.S., there] was _____ in authorized bills

submitted to Esurance for Manual Therapy.

. . .

[As to H.C.,] a total of _____ in unauthorized treatment

was billed to State Farm Insurance for Manual Therapy

and Massage Therapy.

[As to A.N.,] a total of ______ in unauthorized treatment

was billed to Kemper Insurance for Manual therapy.[2]

The county court judge issued the arrest warrant, and Rhodes was

subsequently arrested for seven counts of making false and fraudulent

insurance claims in violation of section 817.234(1)(a)1, Florida Statutes, and

2 The amounts are redacted in the Affidavit for Arrest Warrant.

one count of schemes to defraud in violation of section 817.034(4)(a)3, Florida

Statutes. See Arrest Warrant (Doc. 34-2) at 5. Notably, the assigned

prosecuting attorney referred Rhodes’ case to the Felony Pre-Trial

Intervention Program (Intervention Program). See State Attorney’s Office file

regarding Rhodes (Doc. 34-10; SAO Records) at 000885. On March 26, 2015,

the State Attorney’s Office nol prossed the charges against Rhodes after he

successfully completed the Program. Id. at 000899. As part of the resolution

of the charges, Rhodes paid $6,765.43 of investigative costs to the State of

Florida; $1,755.21 in restitution to Nationwide Insurance regarding the

fraudulent billing associated with the care of O.V.; and $102.40 in restitution

to Optum Insurance regarding the fraudulent billing associated with the care

of D.B. Id. at 000883-896. He also completed 20 hours of community service.

Id.

C. This Case

In the operative Third Amended Complaint and Demand for Jury Trial

(Doc. 22; Complaint), Rhodes alleges that Robbins “knowingly and

deliberately, or with a reckless disregard of the truth, made false statements

or material omissions in his application for the warrant for [Rhodes’] arrest,

and such statements or omissions were necessary to the finding of probable

cause to issue said warrant.” Id. at ¶ 34. Rhodes also alleges that Robbins

“conducted his investigation with a total disregard and misunderstanding of

the law.” Id. ¶ 18. Regarding the false statements, Rhodes asserts that four

of the seven patients interviewed regarding his alleged practice of overbilling

“have flatly denied what [Robbins] alleges he was told by them during their

interviews. Therefore, [Robbins’] inclusion of any alleged fraud by [Rhodes]

relating to these patients was knowingly false.” Id. ¶¶ 13-14. As to the

omissions and mistakes of law, Rhodes asserts that because Florida law

permits a chiropractic physician to bill for “manual physical therapy when it is

performed by medical assistants incidental to the practice of the physician,” id.

¶ 22, Robbins was wrong to claim that Rhodes violated the law by billing for

manual therapy performed by an unlicensed massage therapist. Id. ¶ 23. In

addition, Rhodes alleges that Robbins and the therapist employee, operated

under the incorrect belief that Rhodes’ billing practices were unlawful, where

in fact his billing practices were fully compliant with insurance practices. Id.

at ¶ 27.

On August 20, 2018, Robbins filed a motion to dismiss the Complaint on

the basis of qualified immunity, see Defendant Paul Robbins’ Motion to

Dismiss Plaintiff’s Third Amended Complaint (Doc. 23; Motion to Dismiss),

which the Court granted in part and denied in part in a written order entered

on March 13, 2019, see Order (Doc. 29). Specifically, the Court dismissed

Rhodes’ claims based on his arrest for the scheme to defraud charge and the

false and fraudulent insurance charges related to patients O.V., B.L., and D.B.

See id. at 32. The Court denied the Motion to Dismiss as it related to Rhodes’

allegations that Robbins included falsities in the Affidavit for Arrest Warrant

relating to patients R.G., M.S./H.S., H.C., and A.N. See id. at 34. In short, the

Court concluded that:

Robbins had arguable probable cause to arrest Rhodes

for a scheme to defraud, and arguable probable cause for

[the] three charges of false and fraudulent insurance

claims [relating to patients O.V., B.L. and D.B.] As such,

and if Robbins had only arrested Rhodes for these four

charges, Robbins would be entitled to qualified

immunity in the entirety from Rhodes’[s] malicious

prosecution action against him. However, Rhodes

[Complaint] plausibly alleges that based on the falsities

Robbins allegedly included in the Affidavit for Arrest

Warrant, Robbins lacked arguable probable cause to

arrest Rhodes for the remaining four charges of false

and fraudulent insurance claims [regarding patients

R.G., M.S./H.S., H.C. and A.N.] While Robbins may

have had arguable probable cause to arrest Rhodes for

some of the charges detailed in the Affidavit for Arrest

Warrant, “probable cause as to one charge will not bar a

malicious prosecution claim based on a second, distinct

charge as to which probable cause was lacking.” [Elmore

v. Fulton Co. Sch. Dist., 605 F. App’x 906, 914-15 (11th

Cir. 2015)]. . . . Therefore, Robbins cannot obtain a

dismissal of Rhodes’ entire malicious prosecution claim

against him on the basis of qualified immunity. [Rhodes’

Complaint] sufficiently alleges a claim of malicious

prosecution against Robbins, to the extent Robbins

included falsities in the Affidavit for Arrest Warrant.

Id. at 33-34 (emphasis added). In so ruling, the Court noted that its decision

did not “preclude Robbins from reasserting his qualified immunity defense

later in this action as the facts of the case become more developed.” Id. at 34

n.11 (citation omitted). The instant Motion followed on October 29, 2019.

II. Summary Judgment Standard

Under Rule 56, Federal Rules of Civil Procedure (Rule(s)), “[t]he court

shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Rule 56(a). The record to be considered on a motion for

summary judgment may include “depositions, documents, electronically

stored information, affidavits or declarations, stipulations (including those

made for purposes of the motion only), admissions, interrogatory answers, or

other materials.” Rule 56(c)(1)(A). “An affidavit or declaration used to

support or oppose a motion must be made on personal knowledge, set out facts

that would be admissible in evidence, and show that the affiant or declarant

is competent to testify on the matters stated.” Rule 56(c)(4). Significantly,

“[u]nsworn statements ‘do[ ] not meet the requirements of [Rule 56(c)]’ and

cannot be considered by a district court in ruling on a summary judgment

motion.” Carr v. Tatangelo, 338 F.3d 1259, 1273 n.26 (11th Cir. 2003) (quoting

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17 (1970)).

An issue is genuine when the evidence is such that a reasonable jury

could return a verdict in favor of the nonmovant. Mize v. Jefferson City Bd.

of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville

Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of

evidence in support of the non-moving party’s position is insufficient to defeat

a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v.

Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of

demonstrating to the court, by reference to the record, that there are no

genuine issues of material fact to be determined at trial. See Clark v. Coats

& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When the non-moving

party bears the burden of proof on an issue at trial, the moving party need

not ‘support its motion with affidavits or other similar material negating the

opponent’s claim,’ Celotex Corp. v. Catrett, 477 U.S. 317, 323, in order to

discharge this initial responsibility.” Gonzalez v. Lee Cty. Hous. Auth., 161

F.3d 1290, 1294 (11th Cir. 1998). Instead, the moving party simply may

demonstrate “that there is an absence of evidence to support the nonmoving

party’s case.” Id.

“When a moving party has discharged its burden, the non-moving party

must then go beyond the pleadings, and by its own affidavits, or by

depositions, answers to interrogatories, and admissions on file, designate

specific facts showing that there is a genuine issue for trial.” Jeffery v.

Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal

citations and quotation marks omitted). Substantive law determines the

materiality of facts, and “[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry

of summary judgment.” Anderson, 477 U.S. at 248. In determining whether

summary judgment is appropriate, a court “must view all evidence and make

all reasonable inferences in favor of the party opposing summary judgment.”

Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros.

Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

III. Qualified Immunity

The doctrine of “[q]ualified immunity protects from civil liability

government officials who perform discretionary functions if the conduct of the

officials does not violate ‘clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Nolin v. Isbell, 207 F.3d

1253, 1255 (11th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). As a result, this defense protects from suit “‘all but the plainly

incompetent or those who knowingly violate the law.’”3 Carr v. Tatangelo, 338

F.3d 1259, 1266 (11th Cir. 2003) (quoting Malley v. Briggs, 475 U.S. 335, 341

3 In determining whether a defendant is entitled to qualified immunity, courts view the facts

and all reasonable inferences in the light most favorable to the plaintiff to the extent supported by the

record, and then considers “the legal issue of whether the plaintiff’s ‘facts,’ if proven, show that the

defendant violated clearly established law.” Priester v. City of Riviera Beach, 208 F.3d 919, 925 n.3

(11th Cir. 2000); Scott v. Harris, 550 U.S. 372, 381 n.8 (2007).

(1986)). Indeed, as “‘government officials are not required to err on the side of

caution,’ qualified immunity is appropriate in close cases where a reasonable

officer could have believed that his actions were lawful.” Lee v. Ferraro, 284

F.3d 1188, 1200 (11th Cir. 2002) (quoting Marsh v. Butler Cnty., 268 F.3d 1014,

1031 n.8 (11th Cir. 2001)).

To be entitled to qualified immunity, the defendant bears the initial

burden to establish that his conduct was within the scope of his discretionary

authority. See Webster v. Beary, 228 F. App’x 844, 848 (11th Cir. 2007); Lee,

284 F.3d at 1194. Here, neither party contends that Robbins was acting

outside the scope of his discretionary authority when he obtained the arrest

warrant and subsequently arrested Rhodes. Therefore, the burden shifts to

Rhodes “to show that qualified immunity is not appropriate.” Lee, 284 F.3d at

1194. To do so, Rhodes must establish two elements: (a) that Robbins violated

a constitutional right, and (b) the right violated was clearly established.

Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004) (citing

Saucier v. Katz, 533 U.S. 194, 201 (2001)). The Court may consider these

elements in whichever order it chooses, and qualified immunity will protect

the defendant if the plaintiff fails to establish either element. Pearson v.

Callahan, 555 U.S. 223, 232, 236 (2009).

Rhodes asserts that Robbins violated his clearly established right under

the Fourth Amendment to be free from an unreasonable seizure because of a

malicious prosecution. See generally Complaint. To prevail on this claim,

Rhodes must prove “a violation of his Fourth Amendment right to be free from

unreasonable seizures, as well as the elements of the common law tort of

malicious prosecution.” Zargari v. United States, 658 F. App’x 501, 506 (11th

Cir. 2016). “[T]he constituent elements of the common law tort of malicious

prosecution include[ ]: (1) a criminal prosecution instituted or continued by the

present defendant; (2) with malice and without probable cause; (3) that

terminated in the plaintiff accused’s favor; and (4) caused damage to the

plaintiff accused.” Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019)

(internal citation and quotation marks omitted)).

In considering whether an officer has probable cause to seek an arrest

warrant, the Eleventh Circuit instructs that

[f]or probable cause to exist, . . . an arrest must be

objectively reasonable based on the totality of the

circumstances. This standard is met when the facts and

circumstances within the officer’s knowledge, of which

he or she has reasonably trustworthy information, would

cause a prudent person to believe, under the

circumstances shown, that the suspect has committed, is

committing, or is about to commit an offense.

Lee, 284 F.3d at 1195 (quotation and internal quotation marks and citation

omitted). However, “[t]o receive qualified immunity, an officer need not have

actual probable cause, but only ‘arguable’ probable cause.” Brown v. City of

Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). Accordingly, the dispositive

question for qualified immunity purposes “is not whether actual probable

cause existed; rather, the question is whether the officer had ‘arguable’

probable cause.” Carter v. Gore, 557 F. App’x 904, 908 (11th Cir. 2014).

“Arguable probable cause exists ‘where reasonable officers in the same

circumstances and possessing the same knowledge as the Defendant[ ] could

have believed that probable cause existed to arrest.’” Lee, 284 F.3d at 1195

(quotation omitted). “This standard recognizes that law enforcement officers

may make reasonable but mistaken judgments regarding probable cause but

does not shield officers who unreasonably conclude that probable cause exists.”

Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir. 2007).

As relevant here, the Eleventh Circuit has recognized that a law

enforcement officer who makes an arrest pursuant to a warrant can be liable

for malicious prosecution if the officer presented materially false statements

in an affidavit in support of the arrest warrant. See Kelly v. Curtis, 21 F.3d

1544, 1554 (11th Cir. 1994); Carter, 557 F. App’x at 907-08. In this context,

the Supreme Court has instructed that

[t]he requirement that a warrant not issue but upon

probable cause, supported by Oath or affirmation, would

be reduced to a nullity if a police officer was able to use

deliberately falsified allegations to demonstrate

probable cause, and, having misled the magistrate, then

was able to remain confident that the ploy was

worthwhile.

Franks v. Delaware, 438 U.S. 154, 168 (1978). Accordingly, “[u]nder Franks,

a police officer violates the Constitution if, in order to obtain a warrant, [he]

perjures [himself] or testifies in reckless disregard of the truth.” Kelly, 21 F.3d

at 1554. In such settings, the officer would not be protected by qualified

immunity. Id. at 1555.

IV. Discussion

Rhodes argues that summary judgment is inappropriate because there

are genuine disputes of material fact as to whether Robbins had probable cause

to arrest Rhodes. See Response at 8. In support of this argument, Rhodes

contends that “as it relates to the allegations on the claims of the specific

patients remaining before the Court, these patients directly contradict what

Defendant asserted in his arrest Affidavit for Arrest Warrant and demonstrate

Defendant included falsehoods and fabrications in his affidavit.” Id. More

specifically, Rhodes asserts that

[a]s to patients M.S./H.S., the allegation is that Dr.

Rhodes was in essence double billing for manual therapy

sessions which only lasted 15 minutes. However, M.S.

has provided a notarized statement asserting that she

“also received 30 minute massages.” See Exhibit B.

There is a similar allegation as it relates to patient H.C.,

where Defendant alleged Rhodes billed for two units of

manual therapy instead of one. Yet, patient H.C.

provides an affidavit directly to the contrary. . . . In sum,

these patients directly dispute what is alleged in

Defendant’s arrest affidavit and undercut the probable

cause asserted therein as to Dr. Rhodes committing

insurance fraud relating to these patients. Without

such falsities, there is no probable cause or arguable

probable cause Dr. Rhodes committed insurance fraud

relating to these patients.

Id. at 8-9. In addition, Rhodes contends that Robbins “knowingly made

material omissions” and “operated under objectively unreasonable mistakes to

both law and fact as it relates to the particular crimes he alleged that Dr.

Rhodes is to have committed.” Id. at 14.

At the outset, the Court finds that it need not consider Rhodes’

arguments regarding alleged omissions or mistakes of law and fact in the

Affidavit for Arrest Warrant, because the Court considered and rejected these

arguments in ruling on the Motion to Dismiss. In his Response, Rhodes argues

that contrary to the statements in the Affidavit for Arrest Warrant, Florida

law permits a chiropractor to bill for manual therapy performed by unlicensed

medical assistants and that the CMS Medicare Manual permits providers to

bill for two units of manual therapy if the session lasts 23 minutes. See

Response at 9-14. In the Order denying the Motion to Dismiss, the Court

considered these same arguments in the context of the schemes to defraud

charge against Rhodes and determined that Rhodes had “not sufficiently

alleged that Robbins’ mistake of law was unreasonable . . . .” Order at 21. In

doing so, the Court explicitly rejected the arguments now raised in the

Response:

Rhodes has not sufficiently alleged that Robbins’

mistake of law was unreasonable . . . . First, the Florida

case cited by Rhodes, State Farm Mut. Auto. Ins. Co. v.

Universal Med. Ctr. of S. Fla., Inc., 881 So. 2d 557, 560-

61 (Fla. 3d DCA 2004) (Universal Med. Ctr. of S. Fla.,

Inc.), is a Florida state appellate decision addressing a

dispute between insurance carriers in which the court

answered a narrow certified question about medical

assistants. The decision sheds no light on whether

“manual therapy” performed by an unlicensed massage

therapist can be billed under billing code CPT 97140.

Indeed, at least one insurance provider believed, and

reported to Robbins, that Rhodes’ practice of doing so

was unlawful. Affidavit for Arrest Warrant at 2. The

Universal Med. Ctr. of S. Fla., Inc. decision similarly

fails to establish whether the specific treatments

provided by the unlicensed individuals, and for which

Rhodes submitted insurance claims, were in fact of the

sort required to be provided by a licensed therapist or

registered chiropractic assistants. As such, it fails to

support a conclusion that Rhodes’ assessment was

“plainly incompetent.” Moreover, Rhodes has not

directed the Court to any other authority of which

Robbins should have been aware regarding whether

unlicensed therapists could perform the specific manual

therapies at issue, or whether such therapies performed

by unlicensed therapists could be billed under the CPT

code used by Rhodes, and the Court has been unable to

find any legal authority addressing the same.

Similarly, Rhodes has not directed the Court to any legal

precedent, nor was the Court able to find any

establishing that Rhodes’ apparent double billing for

manual therapy was indeed lawful, and that Robbins’

conclusion otherwise represented an unreasonable

mistake of law. Regardless of whether Medicare or other

insurance regulations allow a provider to “bill for two

units” if the session lasts for at least twenty-three

minutes, Robbins’ Affidavit for Arrest Warrant reflects

that a witness told him Rhodes was billing for more

units of manual therapy than he provided. Affidavit for

Arrest Warrant at 2. It further reflects that the

employee witness told Robbins that Rhodes directed her

“to show more units of manual therapy” than she

actually provided. Id. at 2. Perhaps, as Rhodes suggests,

this witness was mistaken as to the required length of a

treatment unit, but that does not undermine Robbins’

reliance on her factual representations.

. . . Accordingly, the Court is not persuaded that Rhodes

has sufficiently alleged that Robbins’ mistake of law

rises to the level of the “plainly incompetent.” Carr, 338

F.3d at 1259.

See Order at 22-23. Importantly, the Court further held that “as to Rhodes’

allegations that Robbins omitted information from the Affidavit for Arrest

Warrant, Rhodes has failed to sufficiently plead that Robbins lacked arguable

probable cause to arrest Rhodes for false and fraudulent insurance claims.” Id.

at 24-25. Thus, the Court foreclosed Rhodes’ arguments regarding omissions

and mistakes of law and fact.

Turning to Rhodes’ argument that Robbins included false statements in

the Affidavit for Arrest Warrant, the Court concludes that Rhodes has failed

to submit sufficient evidence to create a genuine issue of fact for trial on the

claim that Robbins violated his Fourth Amendment rights by including false

statements in the Affidavit for Arrest Warrant. Rhodes has submitted

absolutely no evidence in support of his allegations that the Affidavit for Arrest

Warrant contained false statements as to patients H.S. and A.N. Moreover,

assuming the statements submitted by Rhodes can be considered to be proper

summary judgment evidence,4 the Court finds that they fail to raise any

genuine issue of fact for trial. Rhodes maintains that the statements “directly

contradict what Defendant asserted in his Affidavit for Arrest Warrant and

demonstrate Defendant included falsehoods and fabrications in his affidavit.”

Response at 8. Upon review, however, the Court finds this argument to be

unavailing. Indeed, although the declarants deny the veracity of certain

statements they made to Robbins, they do not deny having said what Robbins

recorded in his Affidavit for Arrest Warrant when they spoke to him.

4 The R.G., M.S., and Mosely Statements do not meet the evidentiary requirements of

Rule 56. These signed, notarized statements are not affidavits because they are unsworn.

See Carr, 338 F.3d at 1273 n.26 (“Because the preliminary report was submitted without

attestation, it had no probative value and properly was not considered by the district judge

in ruling on the officers’ summary judgment motions.”). Nor can the statements be

considered declarations under 28 U.S.C. § 1746, as the authors did not declare that their

statements are true and correct under penalty of perjury. See West v. Higgins, 346 F. App’x

423, 425-26 (11th Cir. 2009) (“Unsworn statements . . . should not be ‘consider[ed] in

determining the propriety of summary judgment.’ Federal law does provide an alternative

to making a sworn statement, but requires that the statement include a handwritten

averment, signed and dated, that the statement is true under the penalties of perjury.”

(quoting Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980); 28 U.S.C. § 1746)). In addition,

although the H.C. Statement purports to be an affidavit, it does not indicate whether the

notary placed H.C. under oath or merely confirmed H.C.’s identity. See Fla. Stat. §

117.05(4)(b) (requiring a notary public to indicate on a jurat “[t]he type of notarial act

performed, on oath or an acknowledgment, evidenced by the words ‘sworn’ or

‘acknowledged’”); Fla. Stat. § 117.05(13)(a) (the form jurat in the Florida Statutes for an oath

or affirmation instructing notaries to write that the affiant was “[s]worn to (or affirmed) and

subscribed before [the notary] by means of . . . physical presence or . . . online notarization”);

Shaw v. United States, Case No. 8:09-cr-251-T-30MAP, 2016 WL 1047382, at *7 (M.D. Fla.

Mar. 10, 2016) (“[W]hile the affidavit was notarized by . . . an apparent relative of Petitioner

. . . the notary jurat does not comply with Fla. Stat. §§ 117.05(4)(f) and (5). Specifically, the

jurat does not include the type of identification, either based on personal knowledge or the

specific type of identification the notary is relying upon in identifying the signer of the

affidavit. . . . This alone makes the affidavit invalid.”); Wood v. Sec’y, Dep’t of Corr., 793 F.

App’x 813, 819 (11th Cir. 2019) (noting that “a letter with a purported notary stamp, which

does not comply with the requirements of Florida law,” does not constitute an affidavit).

The R.G. Statement (Doc. 43-1) provides in relevant part:

I R.G. do assert that I did receive two units of

massage/manual therapy most of the visits at Dr.

Rhodes office.

. . .

I also confirm that I did receive traction/roller many

times prior to February 2014 during my visits at Dr.

Rhodes office.

Rhodes argues that this statement contradicts the allegation in the Affidavit

for Arrest Warrant that Rhodes made false insurance claims because R.G. did

not receive traction therapy until February 2014. However, in her statement,

R.G. does not affirmatively represent that she never told Robbins that she did

not receive traction therapy before February 2014. Nor does R.G. describe the

length of her sessions or deny having told Robbins during the investigation

that her therapy sessions were less than 30 minutes.

The M.S. Statement (Doc. 43-2) provides in relevant part:

As to the statements made in case #14-216

I told detectives I didn’t like the Rollertable and stopped

use.

I did recieve [sic] ultrasound.

I also received 30 min. massage’s [sic].

Rhodes also contends that M.S.’s statement that she “received 30 min.

massage’s [sic],” refutes the allegation in the Affidavit for Arrest Warrant “that

Dr. Rhodes was in essence double billing for manual therapy sessions which

only lasted 15 minutes,” see Response at 8. Like R.G., M.S. does not deny

having told Robbins during the investigation that she received massages that

lasted only fifteen minutes.

The H.C. Statement (Doc. 43-4) provides in relevant part:

1. I was a voluntary 2nd time patient of [Rhodes].

. . .

. . .

3. I was interviewed by Detectives from the Florida

Department of Insurance Fraud. Those Detectives did

not explain to me that 2 units of service were actually 23

minutes of services provided even though they had to

have known it. Once that was explained to me, I can

state clearly that I always received 2 units of Manual

Therapy while attending Ocean View. I have also been

made aware that Missy Ross testified under oath that

she always performed 2 units of Manual Therapy on me,

so any billing issues by anyone about that evaporated.

4. I was not told by those Detectives that manual

therapy was what I was billed for, not Massage, nor that

this Manual Therapy could be performed by anyone in

the office when under the supervision of Dr. Rhodes, who

had all the proper licenses to allow this.

5. The Detectives wrote in their notes that Missy

Ross performed only 1 unit of manual therapy during

each visit. That is untrue and not what I said to them.

They did not show me that on many occasions I had

received 2 units of Manual therapy but only been billed

for 1 unit. Since I assume that they had the billing

records from the insurance company, they had to have

known that my account had actually been under-billed

not over-billed. I don’t believe they were honest in how

they dealt with me.

6. . . . I see from the records that Dr. Rhodes

actually placed me on the roller bed/traction table

several times himself as well as others in the office. So,

my statements to the Detectives that I hadn’t received

that treatment but once or twice was incorrect.

Rhodes contends that this statement directly contradicts the allegation in the

Affidavit for Arrest Warrant that “Rhodes billed for two units of manual

therapy instead of one.” Id. at 9. However, H.C. does not deny telling Robbins

his manual therapy sessions lasted approximately 15 minutes. Indeed, H.C.’s

statement reads more like an after-the-fact assertion that he received two

units of therapy, which is not the same as denying ever having told Robbins

that he was treated for only 15 minutes at a time.

Finally, the Moseley Statement (Doc. 43-6) provides in relevant part:

After reading the statements by detectives relating what

I said, I want to convey there are are [sic] many, actually

most all of the statements, were falsely written by them.

I loved working for Dr. Rhodes, and never observed him

overbilling, or billing for a patient not treated, etc. And

to clarify, the patients that made allegations while I

worked there, such as H.C. received multiple therapies

[such] as traction, even neck harness traction, U.S., each

visit, and was always in the manual therapy room with

Missy Ross for at least 30 min. . . . I regret that my

statements were misrepresented, and that any question

of Dr. Rhodes [sic] integrity and honest billing practices

were ever questioned. I enjoyed working there . . . .

Rhodes argues that Moseley’s statement “directly contradict[s] what the

Defendant represented she said to him during his interview of her.” See

Response at 6. However, the Summary Report indicates that Moseley told

Robbins that “there may have been billing for massages that H.C. did not

receive.” See Summary Report at 35 (emphasis added). The M.S. Statement

simply does not raise a disputed issue of material fact as to whether Robbins’

allegations in the Affidavit for Arrest Warrant relating to H.C. (i.e., that State

Farm was billed for manual and massage therapy that H.C. never received)

were knowingly false.

In short, even considering the statements submitted by Rhodes, the

Court concludes that he has failed to raise a genuine dispute of fact as to

whether the Affidavit for Arrest Warrant included false statements. Although

Rhodes’ allegations of false statements were sufficient to survive a motion to

dismiss, at the summary judgment stage Rhodes was required to do more than

rely on allegations. He must point to “evidence beyond the pleadings” that

shows a genuine dispute of material fact as to his § 1983 malicious prosecution

claim, which he has failed to do. Celotex, 477 U.S. at 324. Because the

statements in the Affidavit for Arrest Warrant establish at least arguable

probable cause that Rhodes was committing insurance fraud, and because

Rhodes has failed to point to evidence creating an issue for trial on his claim

that Robbins knowingly included false information in the Affidavit for Arrest

Warrant, Robbins is entitled to the protection of qualified immunity. As such,

summary judgement is due to be entered in favor of Robbins.

Accordingly, it is ORDERED:

1. Defendant’s Motion for Summary Judgment (Doc. 388) is

GRANTED.

2. The Clerk of Court shall enter judgment in favor of Defendant

Paul Robbins and close the file.

DONE AND ORDERED in Jacksonville, Florida on March 30, 2021.

MARCIA MORALES HOWARD

United States District Judge

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Copies to:

Counsel of Record

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