Salvatore Broes, III v. Aaron Boyce, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13914
Non-Argument Calendar
____________________
SALVATORE BROES, III,
Plaintiff-Appellant,
versus
HALL COUNTY GEORGIA DISTRICT ATTORNEY, et al.,
Defendants,
AARON BOYCE,
Deputy Sheriff,
JENNIFER WRIGHT,
Lieutenant,
ALEISHA RUCKER-WRIGHT,
Director,
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2 Opinion of the Court 22-13914
SHELLY RENAE TEEMS
f.k.a. Shelly Broes,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:19-cv-00111-RWS
____________________
Before J ORDAN, BRANCH , and B LACK , Circuit Judges.
PER CURIAM:
Salvatore Broes, III appeals the district court’s grant of sum-
mary judgment to Aaron Boyce and Jennifer Wright, both employ-
ees of the Dawson County Sheriff’s Department, and Aleshia
Rucker-Wright, an employee of Dawson County’s Emergency
Communications Department (collectively, Dawson Appellees) in
Broes’ action alleging malicious prosecution against the Dawson
Appellees. Broes asserts the district court erred in granting sum-
mary judgment by concluding probable cause existed for the
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22-13914 Opinion of the Court 3
charges against him. After review,1 we affirm the district court’s
grant of summary judgment.
I. FACTUAL BACKGROUND
We begin with a brief introduction to the parties and Broes’
theory of the case. This case arises from Broes’ arrest following a
domestic incident on March 6, 2017, in Dawson County, Georgia
between Broes and his ex-wife Shelly Teems. Aaron Boyce was an
investigator in the Criminal Investigations Division (CID) who de-
termined there was probable cause to arrest Broes. Jennifer Wright
was a sergeant who had authority to assign cases to investigators
for review, and reviewed Boyce’s investigation before it was sent to
the District Attorney’s office. Aleshia Rucker-Wright was the 911
Director for the Sheriff’s Office and in that capacity had access to
investigatory records maintained by the Sheriff’s Department.
Wright and Rucker-Wright are married and attended the gym
Teems worked at in 2017, although they did not know Teems per-
sonally. Broes alleges “Teems apparently approached Wright about
charging Broes,” which set the alleged malicious prosecution in ac-
tion. Specifically, before Boyce and Wright were involved, another
investigator in the CID, Patrick Apoian, had decided there was not
probable cause to charge Broes with any crimes. Additionally, the
deputies responding to the scene of the domestic incident did not
charge Broes at that time. Broes focuses on the responding
1 “We review a grant of summary judgment de novo, drawing all reasonable
inferences in the light most favorable to the non-moving party.” Ireland v.
Prummell, 53 F.4th 1274, 1286 (11th Cir. 2022) (quotation marks omitted).
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4 Opinion of the Court 22-13914
deputies’ failure to arrest him, and Apoian’s decision not to charge
him as well as Apoian’s belief that the case had been closed, to al-
lege that all further actions taken against him were malicious pros-
ecution. He alleges Wright assigned the case to Boyce after Rucker-
Wright destroyed Apoian’s records of the investigation.
On March 6, 2017, Broes and Teems met at Broes’ house to
divide their personal property following their divorce. Teems had
a list of items she was retrieving pursuant to the divorce decree on
her iPhone. At some point during the meeting, Teems allowed
Broes to look at and hold her phone to text the list of items to him-
self.2 According to Teems, after Broes got Teems’ phone, he then
began looking at her personal text messages and sent at least two
sexually explicit photographs of Teems to himself without Teems’
consent. Teems repeatedly asked for her iPhone back, but Broes
refused to return it and locked Teems out of his house. He called
Teems a whore and threatened to post the pictures on Facebook.
Teems then kicked the door open. Teems alleged Broes next put
her in a choke hold, after which she bit him on the arm to escape.
Teems alleged Broes then grabbed her by both of her arms and
placed them behind her back. She dropped to her knees, which
caused Broes to let go of her and drop her phone on the ground.
After he laid Teems’ phone on the ground, Teems called 911.
Broes’ account of the incident is different. He alleges Teems
attacked him for viewing her intimate photos while they were
2 Many of the background facts are taken from a videotaped interview be-
tween Apoian and Teems.
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22-13914 Opinion of the Court 5
moving her property out of their former marital home. She at-
tacked him and damaged his home and property. When they began
arguing, Teems hit Broes’ door with a log and then kicked in the
door, entered his house, attacked him, took her phone, and he let
her have it. Teems then bit Broes and hit him three times, after
which he gave the phone back to her and told her to leave.
Deputies Brian Chester, Jacob Crawford, and Russell Low-
ery reported to the scene. The officers spoke to both Teems and
Broes, and noticed an apparent bite mark on Broes’ arm and red-
ness on Teems’ neck. The officers prepared an incident report stat-
ing they were “unable to determine the primary aggressor,” and
decided not to arrest either party on the scene.
Standard practice required the incident report be forwarded
to the Dawson County Sheriff’s Office CID. Sergeant Wright as-
signed the case to Deputy Apoian. Apoian interviewed Teems on
March 14, 2017, and the interview was recorded. He also spoke to
Broes, but that conversation was not recorded and there were no
substantive notes on the conversation in the investigation file.
Apoian testified his investigation concluded there was not probable
cause for charges against Broes; however, that was not reflected in
the file. Apoian believed he had closed the case, but it was also not
reflected in the investigation file. Apoian believed Boyce, who was
new to the CID, was selected to investigate this case after Apoian
had already closed it because someone wanted to dictate the out-
come of the case. However, Apoian did not have the authority to
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6 Opinion of the Court 22-13914
close the case on his own. Shortly after his investigation, Apoian
left the CID.
In May 2017, Boyce was assigned the Broes case. Boyce does
not remember who assigned the case to him, but he assumed it was
Captain Thurmond Atkinson, because he generally assigned cases.
Wright testified that she did not assign the Broes case to Boyce, and
that Atkinson reassigned Apoian’s cases. Boyce understood the
Broes case to still be open, and the file contained Apoian’s vide-
otaped interview with Teems and some brief notes. Boyce testified
that when he has a case reassigned to him, he does not usually talk
to the prior investigator, relying instead on the case file and incident
reports in an effort to remain unbiased. In the course of his inves-
tigation, Boyce watched Apoian’s interview with Teems and at-
tempted to contact Broes several times to schedule an interview,
but was unsuccessful. He ultimately concluded there was probable
cause to arrest Broes for aggravated assault. Wright and other su-
pervisors reviewed Boyce’s completed investigation file. Wright
agreed with Boyce’s conclusion there was probable cause to arrest
Broes and signed off on his application for an arrest warrant. Boyce
obtained a warrant to arrest Broes on May 8, 2017, and Broes was
arrested the same day. Boyce attempted to interview Broes the next
day, but he invoked his right to an attorney. On May 11, 2017, Boyce
interviewed Teems, and during the interview, personally viewed
and took pictures of the text message thread on Teems’ phone
which showed Broes sent himself the sexually explicit pictures of
Teems. With this evidence, on May 30, 2017, Boyce obtained war-
rants to arrest Broes for the additional crimes of theft by taking,
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22-13914 Opinion of the Court 7
computer trespass, and prohibition on nude or sexually explicit
transmissions. He was arrested for those additional crimes.
On May 31, 2017, a magistrate judge held a hearing regard-
ing probable cause for Broes’ arrest for aggravated assault. Follow-
ing testimony from and cross-examination of Boyce, the judge
ruled there was probable cause to charge Broes with aggravated
assault. Similarly, on September 27, 2017, another magistrate judge
held a hearing regarding probable cause on the other charges. After
Boyce’s testimony, the judge concluded there was probable cause
to charge Broes with theft by taking and computer trespass, but
there was not probable cause to charge Broes with prohibition on
nude or sexually explicit transmissions.
On December 18, 2017, Teems recanted her prior state-
ments and said her allegations were blown out of proportion and
she would like the charges against Broes dismissed. The district
attorney dismissed the charges against Broes, but noted there was
probable cause for his arrest. In a later deposition, Teems testified
she only recanted under pressure and coercion from Broes and his
family, and that her initial testimony and statements to officers
were true.
II. PROCEDURAL BACKGROUND
The original summary judgment motion deadline for the
parties was November 1, 2021. The Dawson Appellees requested
an extension to November 15, 2021, which the district court
granted. The Dawson Appellees filed a motion for summary judg-
ment on the malicious prosecution claim on November 15, along
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8 Opinion of the Court 22-13914
with a statement of material facts. Broes sought an additional ex-
tension to file his own motion for summary judgment, which the
district court granted, giving Broes until November 26, 2021, to file
his motion for summary judgment. On November 24, 2021, Broes
filed a motion for leave to file excess pages as to his motion for sum-
mary judgment, which the district court granted on November 29,
2021, allowing Broes to file a motion for summary judgment up to
50 pages, and ordering the motion be filed by November 30, 2021.
On December 1, Broes filed an amended motion for leave to file
cross-motion for summary judgment by December 3, 2021, in re-
sponse to the Dawson Appellees’ motion. The district court denied
Broes’ motion, reasoning that Broes had “been granted ample time
to submit his own Motion for Summary Judgment and failed to do
so,” and that Broes “did not meet the most recent (twice-revised)
deadline set by this Court.” The district court noted Broes still had
an opportunity to address the merits of the Dawson Appellees’ mo-
tion for summary judgment, and that the deadline for the response
remained December 6, 2021.
Broes missed the deadline to file a response to the Dawson
Appellees’ motion for summary judgment, and filed a motion for
reconsideration of the order denying him leave to file a cross-mo-
tion for summary judgment on December 8, 2021. The district
court denied the motion for reconsideration on June 21, 2022, and
the district court ordered Broes’ response to the Dawson Appel-
lees’ motion for summary judgment was due no later than July 7,
2022. The response to the motion for summary judgment was filed
on July 7, 2022. However, rather than responding to the Dawson
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22-13914 Opinion of the Court 9
Appellees’ motion for summary judgment, the response argued
that the Dawson Appellees’ defenses were meritless. 3 The re-
sponse was in effect a motion for summary judgment in favor of
Broes, rather than a response to the Dawson Appellees’ motion for
summary judgment. Broes also filed a response to the Dawson Ap-
pellees Statement of Facts.
III. DISTRICT COURT ORDER
The district court discussed Broes’ failure to respond to the
Dawson Appellees’ motion for summary judgment, noting that
where the nonmoving party has failed to respond to a motion for
summary judgment, “the district court cannot base the entry of
summary judgment on the mere fact that the motion was unop-
posed, but, rather, must consider the merits of the motion.” See
U.S. v. One Piece of Real Property Located at 5800 SW 74th Ave., Miami,
Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). And, while the district
court need not review all the evidentiary materials on file, the dis-
trict court must review the evidentiary materials submitted in sup-
port of summary judgment and determine whether they establish
the absence of a genuine issue of material fact. See id.
3 Broes contends the district court erred in granting the Dawson Appellees’
motion for summary judgment because the Dawson Appellees did not
properly disclose the basis for their defenses in discovery. Because this is an
argument Broes raised in what amounted to an improperly filed cross-motion
for summary judgment, we do not address it. We note Broes does not appeal
the district court’s denial of his requested extension to file a cross-motion for
summary judgment or the denial of his motion for reconsideration of the or-
der denying him leave to file a cross-motion for summary judgment.
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10 Opinion of the Court 22-13914
The district court discussed the standard for qualified im-
munity, finding it was undisputed the Dawson Appellees were act-
ing within the scope of their discretionary authority, so the burden
shifted to Broes to show the Dawson Appellees violated one of his
constitutional rights and that the constitutional right was clearly
established at the time of the violation. Broes asserted the Dawson
Appellees violated his clearly established right under the Fourth
Amendment to be free from an unreasonable seizure as a result of
a malicious prosecution.
The district court then substantively analyzed Broes’ claims
of malicious prosecution, concluding there was at least arguable
probable cause to support his arrest and prosecution. See Black v.
Wigington, 811 F.3d 1259, 1267 (11th Cir. 2016) (“[T]he presence of
probable cause defeats a claim of malicious prosecution.”). The
district court concluded there was at least arguable probable cause
to arrest Broes for the crimes of aggravated assault under O.C.G.A.
§ 16-5-21, theft by taking under O.C.G.A. § 16-8-2, nude electronic
transmission under O.C.G.A. § 16-11-90, and computer trespass un-
der O.C.G.A. § 16-9-93(b). Because there was no constitutional vi-
olation, the district court held the Dawson Appellees were entitled
to qualified immunity. The court also granted summary judgment
to the Dawson Appellees on Broes’ state law malicious prosecution
claim.
IV. ANALYSIS
As an initial matter, Broes argues the district court discarded
certain facts in evidence in granting summary judgment.
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22-13914 Opinion of the Court 11
Specifically, Broes focuses on the fact the responding deputies did
not find probable cause to arrest Broes at the scene of the incident,
Apoian did not believe there was probable cause to arrest Broes,
and Apoian believed he had closed the case.
First, the responding deputies did not make a final determi-
nation as to probable cause; rather, they filed an initial police report
stating they were “unable to determine the primary aggressor.”
They then forwarded the case to CID who investigated the case
further. Thus, that the responding deputies did not find probable
cause at the time of the incident does not mean another officer
could not later find probable cause upon further investigation.
Second, Apoian’s determination of no probable cause and
belief he had closed the case does not affect whether another inves-
tigator could find probable cause upon further investigation. De-
spite Apoian’s allegation he closed the case, the evidence supports
that Apoian did not have authority to close the case and could not
have closed it on his own. When Boyce received the case, it was
still an active investigation, and he was entitled to make a probable
cause determination independent of Apoian.
A. Relevant Law
To receive qualified immunity, an officer “bears the initial
burden to prove that he acted within his discretionary author-
ity.” Dukes v. Deaton, 852 F.3d 1035, 1041 (11th Cir. 2017). The plain-
tiff then bears the burden of proving “the defendant violated a con-
stitutional right” and “the right was clearly established at the time
of the violation.” Barnes v. Zaccari, 669 F.3d 1295, 1303 (11th Cir.
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12 Opinion of the Court 22-13914
2012). Because Broes does not dispute the Dawson Appellees were
engaged in a discretionary function, he bears the burden of proving
they were not entitled to qualified immunity.
Broes claims the Dawson Appellees are liable under the
Fourth Amendment for malicious prosecution. To succeed on this
claim, Broes must prove (1) the Dawson Appellees “violated his
Fourth Amendment right to be free from seizures pursuant to legal
process” and (2) “the criminal proceedings against him terminated
in his favor.” Luke v. Gulley, 975 F.3d 1140, 1144 (11th Cir. 2020). Be-
cause the existence of “[p]robable cause renders a seizure pursuant
to legal process reasonable under the Fourth Amendment[,] ... the
presence of probable cause defeats a claim that an individual was
seized pursuant to legal process in violation of the Fourth Amend-
ment.” Washington v. Howard, 25 F.4th 891, 898 (11th Cir.
2022) (quotation marks omitted).
In the context of an arrest, probable cause exists “when the
facts, considering the totality of the circumstances and viewed
from the perspective of a reasonable officer, establish ‘a probability
or substantial chance of criminal activity.’” Id. (quoting District of
Columbia v. Wesby, 583 U.S. 48, 57 (2018)). In assessing whether
there was probable cause for an arrest, we “ask whether a reasona-
ble officer could conclude that there was a substantial chance of
criminal activity.” Id. at 902 (alteration adopted) (quotation marks
and alteration omitted). “Probable cause does not require conclu-
sive evidence and is not a high bar.” Id. at 899 (quotation marks
omitted).
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22-13914 Opinion of the Court 13
Thus, we now turn to whether there was probable cause to
arrest Broes. To determine whether there was probable cause for
Broes’ arrests, we ask whether a reasonable officer could have con-
cluded there was a substantial chance he had committed the crimes
of aggravated assault under O.C.G.A. § 16-5-21; theft by taking un-
der O.C.G.A. § 16-8-2; nude electronic transmission under
O.C.G.A. § 16-11-90; and computer trespass under O.C.G.A. § 16-9-
93(b). We will address each crime in turn.
B. Aravated Assault
Under Georgia law, a person commits the offense of aggra-
vated assault “when he or she assaults . . . (2) [w]ith a deadly
weapon or with any object, device, or instrument which, when
used offensively against a person, is likely to or actually does result
in serious bodily injury; [or] (3) [w]ith any object, device, or instru-
ment which, when used offensively against a person, is likely to or
actually does result in strangulation.” O.C.G.A. § 16-5-21(a). Geor-
gia law provides that using one’s hands to choke someone consti-
tutes aggravated assault. See Maxwell v. State, 825 S.E. 2d 420, 422
(Ga. Ct. App. 2019).
There was probable cause to arrest Broes for aggravated as-
sault. During Boyce’s investigation, he reviewed the case file, in-
cluding the initial report from the responding officers, watched the
videotaped interview with Teems, and attempted to contact Broes
for an interview. He learned that both on the day of the incident
and afterward, Teems had stated that Broes had put her in a choke
hold before she was able to escape, and the responding officers
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14 Opinion of the Court 22-13914
noted her neck appeared red in the aftermath of the incident.
These facts are enough for a reasonable officer to conclude there
was a substantial chance Broes committed aggravated assault
against Teems.
C. Theft by Taking
O.C.G.A. § 16-8-2 states a person commits theft by taking
“when he unlawfully takes or, being in lawful possession thereof,
unlawfully appropriates any property of another with the intention
of depriving him of the property, regardless of the manner in
which the property is taken or appropriated.” Boyce’s investigation
supported that Teems handed Broes her phone so he could review
the list of items and take a screenshot of it, but he subsequently
began searching through her messages, sent pictures to himself, re-
fused her repeated demands to return the phone, and held onto it
while he locked her out of the house. While Broes contends Teems
voluntarily gave him her phone and he returned it after a few
minutes, “[t]he manner in which the property is appropriated is ir-
relevant” since an individual can lawfully take possession of prop-
erty and subsequently exceed their authorization to possess or use
that property. See Tate v. Holloway, 499 S.E.2d 72, 74 (Ga. Ct. App.
1998). It is also “irrelevant whether deprivation was permanent or
temporary,” because “[t]he intent to withhold property of another
even temporarily satisfies the mens rea requirement of the theft by
taking statute.” Ferrell v. State, 322 S.E.2d 751, 751 (Ga. Ct. App.
1984). There was probable cause to arrest Broes for theft by taking.
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22-13914 Opinion of the Court 15
D. Unlawful Nude Electronic Transmission
In relevant part, O.C.G.A. § 16-11-90 provides a person com-
mits unlawful nude electronic transmission:
(b) . . . if he or she, knowing the content of a trans-
mission or post, knowingly and without the consent
of the depicted person:
(1) Electronically transmits or posts, in one or
more transmissions or posts, a photograph or
video which depicts nudity or sexually explicit
conduct of an adult . . . when the transmission
or post is harassment or causes financial loss to
the depicted person, serves no legitimate pur-
pose to the depicted person . . . .
Boyce learned Broes had searched through Teems’ phone and lo-
cated sexually explicit photographs of her, which he sent himself
by text message and threatened to post on Facebook. While the
magistrate judge ultimately concluded there was not probable
cause to arrest Broes for a violation of the unlawful nude electronic
transmission statute, there was at least arguable probable cause to
arrest Broes for this offense. See Grider v. City of Auburn, Ala., 618
F.3d 1240, 1257 (11th Cir. 2010) (“Indeed, it is inevitable that law
enforcement officials will in some cases reasonably but mistakenly
conclude that probable cause is present, and in such cases those of-
ficials should not be held personally liable (quotation marks omit-
ted)).
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E. Computer Trespass
O.C.G.A. § 16-9-93(b)(2) provides a person commits com-
puter trespass when they “use[] a computer or computer network
with knowledge that such use is without authority and with the
intention of . . . [o]bstructing, interrupting, or in any way interfer-
ing with the use of a computer program or data.” Boyce learned
Broes used Teems’ phone to send sexually explicit pictures of her
to himself without her permission. While the Dawson Appellees
acknowledge the Georgia Supreme Court has since held that ac-
tions similar to the one here do not amount to computer trespass,
see Kinslow v. State, 860 S.E.2d 444, 451 (Ga. 2021), at the time of the
events in question, there was at least arguable probable cause to
arrest Broes for computer trespass.
V. CONCLUSION
The Dawson Appellees are entitled to qualified immunity as
there was no Fourth Amendment violation. There was at least ar-
guable probable cause to arrest Broes for all four offenses.4 See
Black v. Wigington, 811 F.3d 1259, 1267 (11th Cir. 2016) (“[T]he
4 The district court also granted summary judgment to the Dawson Appellees
on Broes’ state malicious prosecution claim. Broes does not plainly and prom-
inently raise the state law claim as a basis for appeal in his brief, and has there-
fore abandoned it. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681-82
(11th Cir. 2014). To the extent Broes appeals the district court’s grant of sum-
mary judgment to the Dawson Appellees on his state malicious prosecution
claim by arguing malicious prosecution generally, we affirm the district court.
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22-13914 Opinion of the Court 17
presence of probable cause defeats a claim of malicious prosecu-
tion.”). We affirm the district court.
AFFIRMED.
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