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                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 12-15687
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 8:10-cv-01533-JSM-TGW

JOHNNIE FITZGERALD HOWARD,
                                                                   Plaintiff-Appellee,

                                          versus

DAVID GEE,
Sheriff of Hillsborough County, et al.,
                                                                           Defendants,

ROBERT MELTON,
RONALD HIGHSMITH,
Deputy Sheriffs of Hillsborough County,
in their individual and official capacities,
                                                              Defendants-Appellants.
                            ________________________

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

                                  (October 25, 2013)

Before CARNES, Chief Judge, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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      Deputies Ronald Highsmith and Robert Melton, who are both correctional

officers with the Hillsborough County Sheriff’s Department, appeal the district

court’s denial of their motion for summary judgment. They contend that they are

entitled to qualified immunity on Johnnie Howard’s 42 U.S.C. § 1983 claim for

malicious prosecution.

                                          I.

      Because Deputies Highsmith and Melton are appealing the denial of

qualified immunity, we present the facts in the light most favorable to Howard.

See Lee v. Ferraro, 

, 1190 (11th Cir. 2002) (“In conducting de novo

review of the district court’s disposition of a summary judgment motion based on

qualified immunity, we are required to resolve all issues of material fact in favor of

the plaintiff.”). At the time of the events underlying this case, Howard was an

inmate in the Falkenburg Road Jail in Hillsborough County, Florida. During lunch

one day, he became upset because most of his soup had spilled onto his tray.

Deputy Highsmith was supervising the inmates in the lunch area at that time, and

Howard approached him to complain. Deputy Highsmith was busy attending to

other matters and told Howard that he would have to deal with his problem later.

      After a few minutes Howard walked up to Deputy Highsmith again to talk

about his lunch, but Deputy Highsmith refused to help. After the last inmate had

received his lunch tray, Howard approached Deputy Highsmith a third time to


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complain about the spilled soup. Deputy Highsmith told him that the other inmates

had not complained about their lunches and directed Howard to leave him alone.

Howard did not leave; instead, he asked Deputy Highsmith for a grievance form.

Deputy Highsmith refused to give him one because Howard had filed a grievance

report the week before that had caused Deputy Highsmith to get in trouble.

Howard then asked to speak with the deputy’s supervisor, but Deputy Highsmith

refused and told Howard to get away from him. Howard refused to leave.

         Deputy Highsmith told Howard to go to a holding cell, but instead of

walking toward the holding cell, Howard started to walk back to his assigned cell.

Deputy Highsmith got up from his desk and tried to grab Howard, but Howard

avoided him by stepping between several tables. Deputy Highsmith came around

the other side of the tables to try to grab Howard again, but as he approached

Howard both men tripped over a plastic cot on the floor, fell onto a stack of chairs,

and fell to the ground. Deputy Highsmith told Howard that he was in “serious

trouble” and Howard was escorted to lockdown. Both men were injured. Howard

suffered a superficial abrasion on his right leg and Deputy Highsmith broke his left

wrist.

         Deputy Highsmith filed an Inmate Disciplinary Report that, among other

things, falsely accused Howard of striking him twice with a chair. The report said

that witness statements were available from several inmates who saw the


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altercation and that “copies of all materials were forwarded to jail detective Melton

for possible criminal prosecution.” It also included a statement from Howard who

said that he had only wanted a grievance form and that he did not hit Deputy

Highsmith with a chair or refuse to go to the holding cell.

      When Deputy Melton received the disciplinary report, he started an

investigation. Relying solely on Deputy Highsmith’s report, Deputy Melton

decided to arrest Howard for aggravated battery on a law enforcement officer. At

no point did Deputy Melton attempt to investigate Howard’s side of the story or

question witnesses. Howard was put on trial, convicted, and permanently

reassigned to the most restrictive unit of the jail. Howard’s conviction was

overturned on appeal because, during the trial, Deputy Highsmith had improperly

contacted a member of the jury. Howard v. State, 

 (Fla. Dist. Ct.

App. 2006). The case was remanded for a second trial, which ended in Howard’s

acquittal.

      Following that acquittal Howard sued Deputies Highsmith and Melton under

42 U.S.C. § 1983 alleging that: (1) Deputy Highsmith had retaliated against him

for engaging in protected conduct; (2) Deputies Highsmith and Melton had

conspired to violate his constitutional rights; (3) Deputy Highsmith had used

excessive force against him; and (4) Deputies Highsmith and Melton had filed a




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false report and subjected him to malicious prosecution.1 The district court

dismissed Howard’s retaliation and conspiracy claims for failure to state a claim on

which relief could be granted. The court also dismissed the excessive force and

malicious prosecution claims against the deputies in their official capacities, but

permitted those claims to proceed against them in their individual capacities.

       Deputies Highsmith and Melton then moved for summary judgment.

Without hearing from Howard after he missed several filing deadlines, the district

court granted summary judgment in favor of the deputies on Howard’s excessive

force claim, concluding that judicial estoppel barred it. On Howard’s malicious

prosecution claim, however, the court denied the deputies’ motion for summary

judgment based on qualified immunity. Deputies Highsmith and Melton now

appeal.

                                              II.

       Deputies Highsmith and Melton contend that the district court erred in

denying them qualified immunity on Howard’s malicious prosecution claim. We

review de novo a district court’s denial of qualified immunity. Townsend v.

Jefferson County, 

, 1157 (11th Cir. 2010). In conducting our

review, we are required to “resolve all reasonable doubts about the facts in favor of

       1
          Howard also sued David Gee, the Sheriff of Hillsborough County, and Deputy David
Parish, alleging that they had negligently supervised Deputies Highsmith and Melton. The
district court dismissed Howard’s claim against those defendants as barred by the statute of
limitations. That ruling is not at issue in this appeal.
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the non-movant.” Feliciano v. City of Miami Beach, 

, 1247 (11th

Cir. 2013) (quotation marks omitted). Qualified immunity shields government

officials from civil liability for torts committed while performing their

discretionary duties, unless their conduct violated clearly established statutory or

constitutional rights. Hadley v. Gutierrez, 

, 1329 (11th Cir. 2008).

      To receive qualified immunity, a public official must first prove that he was

acting within the scope of his discretionary authority when the relevant conduct

took place. Lee, 284 F.3d at 1194. To determine that we ask: (1) whether the

official was performing a function that, “but for the alleged constitutional

infirmity,” would have fallen within his “legitimate job description”; and (2)

whether that function was carried out “through means that were within his power

to utilize.” Holloman ex rel. Holloman v. Harland, 

, 1265–66 (11th

Cir. 2004). As a threshold matter –– and despite Howard’s argument to the

contrary –– both Deputies Highsmith and Melton have met those requirements.

Deputy Highsmith’s job was to supervise inmates, maintain jail security, and fill

out incident reports as necessary. He was acting within his authority when

attempting to detain Howard and reporting the incident. Deputy Melton’s job was

to investigate crimes committed by inmates, and he was acting within his authority

when investigating that incident and recommending Howard for prosecution.




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      Because the deputies were acting within the scope of their discretionary

authority, the burden shifts to Howard to demonstrate that qualified immunity is

not appropriate. Lee, 284 F.3d at 1194. In evaluating whether a plaintiff has met

that burden, we ask: (1) whether, taken in the light most favorable to the plaintiff,

the facts show that the defendants’ conduct violated a constitutional or statutory

right; and (2) if so, whether that right was clearly established. Hadley, 526 F.3d at

1329. To satisfy that two-part test, Howard contends that, when the facts are

viewed in the light most favorable to him, Deputies Highsmith and Melton’s

actions constitute malicious prosecution, a violation of his clearly established

rights under § 1983. See Uboh v. Reno, 

, 1002–03 (11th Cir. 1998)

(clearly establishing in 1998 that malicious prosecution is a constitutional tort

cognizable under § 1983); Wood v. Kesler, 

, 881 (11th Cir. 2003)

(reiterating in 2003, a year before the incident at hand, that malicious prosecution

is a violation of the Fourth Amendment and a constitutional tort cognizable under

§ 1983). A malicious prosecution claim under § 1983 requires a plaintiff to prove

both a violation of his Fourth Amendment right to be free from unreasonable

seizures and the elements of the common law tort of malicious prosecution.

Kingsland v. City of Miami, 

, 1234 (11th Cir. 2004). Howard

alleges that the deputies violated his Fourth Amendment rights by arresting him

without probable cause, see Grider v. City of Auburn, 

, 1256 (11th


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Cir. 2010), and by falsifying facts and evidence to establish probable cause, see

Riley v. City of Montgomery, 

, 1253 (11th Cir. 1997).2 Howard also

claims to have established the six elements of the tort of malicious prosecution

under Florida law:

       (1) an original judicial proceeding against the present plaintiff was
       commenced or continued; (2) the present defendant was the legal
       cause of the original proceeding; (3) the termination of the original
       proceeding constituted a bona fide termination of that proceeding in
       favor of the present plaintiff; (4) there was an absence of probable
       cause for the original proceeding; (5) there was malice on the part of
       the present defendant; and (6) the plaintiff suffered damages as a
       result of the original proceeding.

Kingsland, 382 F.3d at 1234 (citing Burns v. GCC Beverages, Inc., 

, 1218 (Fla. 1986)). Deputies Highsmith and Melton each challenge

Howard’s ability to prove his claim of malicious prosecution, and each offers

different reasons as to why. We will address Howard’s claims against each deputy

separately.

                                   A. Deputy Highsmith

       Deputy Highsmith contends that Howard can prove neither a violation of his

Fourth Amendment rights nor that Deputy Highsmith was the legal cause of his

       2
         Deputies Highsmith and Melton do not contend that Howard, a prisoner who was
incarcerated at the time of the 2004 incident, could not be seized under the Fourth Amendment
given that he was already seized as an inmate. They also do not contend that, when evaluating a
public official’s right to qualified immunity, a standard other than arguable probable cause
should apply to seizures initiated in the prison context. Because the deputies have not raised
those issues, we will assume, for purposes of this appeal only, that Howard could be subjected to
a Fourth Amendment seizure and that arguable probable cause, instead of some lesser quantity of
suspicion, would be required to justify that seizure.
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prosecution. We disagree. Viewing the facts in the light most favorable to

Howard, Deputy Highsmith violated Howard’s Fourth Amendments rights by

filing a false incident report that led to Howard’s arrest and prosecution. See Jones

v. Cannon, 

, 1285 (11th Cir. 1999) (“[T]he Constitution prohibits a

police officer from knowingly making false statements in an arrest affidavit about

the probable cause for an arrest . . . .”); Riley, 104 F.3d at 1253 (holding, in the

context of a plaintiff’s § 1983 and state law malicious prosecution claims against

police officers, that “fabricating incriminating evidence violate[s] constitutional

rights”). Though Deputy Highsmith insists that Howard hit him with a chair, there

is evidence in the record, including sworn testimony by other inmate-witnesses,

that supports Howard’s version of events. Because at this stage we resolve

disputed facts in favor of Howard, we must credit the evidence showing that no

attack occurred and draw the inference that Deputy Highsmith’s report was false.3

       As for the elements of the tort of malicious prosecution, Deputy Highsmith

contests only whether he was the legal cause of Howard’s prosecution.4 Arguing


       3
        We recognize that at the conclusion of the case the evidence may show that Deputies
Highsmith and Melton did not commit the offenses alleged. We do not ourselves suggest that
the deputies engaged in fabrication or abuse, but we must accept Howard’s allegations as true for
purposes of summary judgment. See Kingsland, 382 F.3d at 1228 n.9.
       4
          Because Deputy Highsmith has not challenged Howard’s ability to satisfy the other
elements of the tort of malicious prosecution, arguments on those elements are waived for
purposes of this appeal. See Farrow v. West, 

, 1242 n.10 (11th Cir. 2003) (stating
that issues not argued in a party’s brief on appeal are waived). That does not mean, however,
that Deputy Highsmith is barred from making those arguments in further proceedings.
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that he is not, Deputy Highsmith notes that, in the context of a false arrest by a law

enforcement officer, we have held that intervening acts by “the prosecutor, grand

jury, judge and jury” can break the chain of causation. Barts v. Joyner, 

, 1195 (11th Cir. 1989). That rule stems from the common-sense rationale

that “[o]nce someone is arrested and . . . substantial evidence of the suspect’s guilt

comes to light, the police can do little or nothing to stop further proceedings.” Id.

at 1196. It thus makes little sense to hold an officer responsible for the later

decision to prosecute. Id. That choice is made by others and based on evidence

that exists apart from the officer.

      Where those intervening acts result from an officer’s deception, however,

the chain of causation is not broken. Id. at 1195 (citing Jones v. City of Chicago,

 (7th Cir. 1988), which held that the decision of a prosecutor to

charge and a grand jury to indict did not shield a police officer who deliberately

supplied misleading information). That holds true in cases where the sole basis for

a prosecutorial decision is an officer’s fabricated evidence. Unlike the officer

mentioned above who uncovers evidence but cannot stop further proceedings, an

officer who fabricates evidence may be the only one who can stop a prosecution.

Applying that reasoning here and viewing the facts in the light most favorable to

Howard, we conclude that Deputy Highsmith was the legal cause of Howard’s

prosecution. Under Howard’s evidence, Deputy Highsmith fabricated the sole


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evidence used to charge and indict him and then repeated those fabrications as the

State’s principal witness at his trial.

       Finding that Howard has presented evidence from which a jury could find

malicious prosecution and a violation of his Fourth Amendment rights, we also

conclude that the district court correctly denied qualified immunity to Deputy

Highsmith.

                                      B. Deputy Melton

       Deputy Melton contends that Howard cannot show a violation of his Fourth

Amendment rights.5 After viewing the facts in the light most favorable to Howard,

we disagree. Howard claims that Deputy Melton violated his Fourth Amendment

right to freedom from unreasonable seizures by arresting him without probable

cause. Grider, 618 F.3d at 1256 (“[I]t is well established that an arrest without

probable cause is an unreasonable seizure that violates the Fourth Amendment.”).

To receive qualified immunity, Deputy Melton need not have had actual probable

cause for Howard’s arrest –– only arguable probable cause. Id. at 1257. Arguable

probable cause exists if “reasonable officers in the same circumstances and

possessing the same knowledge as the Defendant[] could have believed that

probable cause existed to arrest Plaintiff.” Id. (quotation marks omitted). While

       5
        Deputy Melton has not contested whether Howard can satisfy the elements of the tort of
malicious prosecution, and any arguments on that issue are waived for purposes of this appeal.
See Farrow, 320 F.3d at 1242 n.10. That does not mean, however, that Deputy Melton is barred
from contesting that issue in further proceedings.
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the qualified immunity standard allows ample room for mistaken judgments, it

does not protect “the plainly incompetent or those who knowingly violate the law.”

Hunter v. Bryant, 

, 229, 

, 537 (1991) (quotation marks

omitted). For example an officer who unreasonably and recklessly disregards

evidence that exonerates a suspect cannot reasonably believe that probable cause

exists. See Kingsland, 382 F.3d at 1233; see also Holmes v. Kucynda, 

, 1083–84 (11th Cir. 2003) (reversing the grant of summary judgment based

on qualified immunity where factual questions existed as to whether police officers

filed a recklessly false application for an arrest warrant).

      In deciding that Deputy Melton did not have arguable probable cause for

Howard’s arrest, we find our decision in Kingsland to be instructive. In that case,

several police officers responded to a car wreck involving another officer and

Misty Kingsland. Kingsland, 382 F.3d at 1223. Once on the scene, the officers

ignored Kingsland and her assertion that the police officer caused the wreck. Id.

Accepting instead their colleague’s statement that Kingsland was at fault, the

arriving officer never bothered to listen to Kingsland’s side of the story. Id. She

was charged with driving under the influence and accused of causing the wreck.

Id. at 1225. Kingsland had suffered a head injury in the wreck, and the charges

against her proved baseless and were later dismissed. Id. Kingsland filed a lawsuit

against the arresting officers alleging false arrest and malicious prosecution. Id. In


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reversing the district court’s grant of summary judgment based on qualified

immunity, we concluded that Kingsland had raised a question of fact about

whether, among other things, the arresting officers had failed to conduct a

reasonable investigation and had ignored certain facts within their knowledge. Id.

at 1231. Though we recognized that “a police officer is not required to explore and

eliminate every theoretically plausible claim of innocence before making an

arrest,” we held that “an officer may not choose to ignore information that has been

offered to him or her, such as Kingsland’s assertions that [the police officer] ran

the red light.” Id. at 1229. “Nor may the officer conduct an investigation in a

biased fashion or elect not to obtain easily discoverable facts, such as . . . whether

witnesses were available to attest to who was at fault in the accident.” Id. Because

the officers failed to take even the most basic investigatory steps, we concluded

that the question of arguable probable cause could not be decided at the summary

judgment stage. Id. at 1232–33

      Like the officers in Kingsland, Deputy Melton concedes that he made little

or no attempt to investigate the incident between Deputy Highsmith and Howard.

He ignored Howard’s version of events and talked to no witnesses, although court

records reveal that at least two people who were readily available could have

corroborated Howard’s story. The only attention he gave to the investigation was

to Deputy Highsmith’s side of the story, as found in his brief incident report.


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Because Deputy Melton neglected to talk to Deputy Highsmith, however, even that

attention appears to have been cursory. Deputy Melton has not established, for

purposes of qualified immunity, that he conducted a reasonable investigation

before charging Howard with battery on a law enforcement officer. Because a fact

question remains about whether Deputy Melton had arguable probable cause to

arrest Howard, we affirm the district court’s denial of qualified immunity.

                                          III.

      As a final matter, Deputies Highsmith and Melton contend that the district

court erred in denying their motion for summary judgment because Howard never

filed a response. The deputies appear to misunderstand the requirements for

summary judgment. Federal Rule of Civil Procedure 56(e)(3) states that if a party

“fails to properly address another party’s assertion of fact . . . , the court may grant

summary judgment if the motion and supporting materials . . . show that the

movant is entitled to it.” (emphasis added). It follows that a district court “cannot

base the entry of summary judgment on the mere fact that the motion was

unopposed, but, rather, must consider the merits of the motion.” United States v.

One Piece of Real Prop. Located at 

 Ave., Miami, Fla., 

, 1101 (11th Cir. 2004). A district court must also “ensure that the motion

itself is supported by evidentiary materials.” Id. Here the district court’s order




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showed due consideration to the merits of the deputies’ motion and the evidence

presented.

      AFFIRMED.




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