SOWELL v. WALSH et al

Filing 22

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 11/10/2016, that the Court GRANT Defendant's motion for summary judgment (Docket Entry 18 ) and that Plaintiff's motion for summary judgment (Docket Entry 16 ) be DENIED. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
J,\MES ODrS SOWELLJR.,

)
)
)
)
)
)
)
)
)

Plaintiff,
V

JOSHUA WALSH, et

al.,

Defendants.

1,:1,5CY757

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATEJUDGE
This matter comes befote the Court upon Plaintiff James Odis Sowell Jr.'s and
DefendantJoshua Ïlalsh's motions for summary judgment. pocket Entries 16, 18.) For
the following reasons, the Court recommends that Defendant's motion for summary judgment
be gtanted and Plaintiffs motion for summary judgment be denied.

I. BACKGROUND
Plaintiff, a prisoner of the State of North Catohna, filed this action pursuant to 42
U.S.C. S 1983 on September 15, 201,5. (Compl., Docket F,ntry
-,{.ugust 20, 201,3, Defendant obtained

^

Plaintiff further âsserts that on ,tugust 22,

2.)

Plaintiff alleges that on

wattaît fot the arrest of Plaintiff. Qd. at
201.3, he was artested and charge

3.)

d for a cdme he

did not commit. Qd.) According to the police report, the suspect attempted to rob the
victim with an object in

a

grocery store parking

lot.

@1.'s Summ. J.

Mot. at 6, Docket Entry

1,6-2.) Plaintiff contends that the physical description given by the victim of the suspect did
not match

him. (Compl. at 3, Docket

Entry

2.)
1,

Plaintiff futhet states that the color of his

vehicle did not match the description of the vehicle that the suspect used to flee the scene
the

crime. (Id.) Plaintiff also asserts that he was not driving because

of

his ddver's permit was

suspended. Qd.) On May 25,201.4, Plaintiff had a trial by jury which lasted until May 28,
201,4.

(Id.) Plaintiff

was ultimately found not

guilty. Qd.) Plaintiff contends that as a

result of being incarcerated he lost his job and accumulated "a tremendous amount of debt."

Qd.) Plaintiff

also âsserts that as a result

of his incarcentton his fzther almost became awatd

of the state and his wife and young daughtet became homeless. (Id. at 4.) Plaintiff contends

that his famdy lost a "place to live, cars, clothes . . . ., everything."

(Id.) Lastly, Plaintiff

contends that Defendant submitted Plaintiffs "name, picture and addtess on public T.V.
(Crime Stoppers) stating that fPlaintiffl committed a crime." (Id.)

As

a

result of Defendant's alleged actions, Plaintiff seeks 5,000,000 dollars in monetary

and punitive damages. Qd. at 5.) On June 9,201,6, Plaintiff filed a motion for summary

judgment. (Docket Entry 16.) On A,ugust2,201.6,Defendant filed a motion fot
judgment. (Docket Entry

summary

18.)

II. STANDARD OF REVIEW
Summary judgment is wartanted

if

the movingpaLtq is entitled to judgmenta;s

there is no genuine issue as to any material fact and

^matter

of

law.

Fed. R. Civ. P. 56(z); Zahodnick

u.

Int'lBa¡. Machs. Corp.,135 F'.3d 911,,91.3 (4th Cir. 1,997). The party seeking suÍìmalT judgment
beats the burden of initially coming forward and demonstrating the absence of a genuine issue

of material

fact.

Celotex Corþ. u. Catrett,477 U.5.317

,323 (1986). Once the moving party has

met its burden, the non-moving party must then affìrmatively demonstrate the ptesence of
2

a

genuine issue

of

material fact which requires

trial. Matsa¡hita Elec. Indøs. Co. u. Zenith Radio

Corþ.,475 U.S. 574,586-87 (1986). When making a summalT judgment determination, the

Coutt must view the evidence and justifiable inferences ftom the evidence in the light most
favorable

to the non-moving patty.

Zahodnick, 135 F.3d

^t

913.

Howevet, the party

opposing summaq/ judgment may not rest on mere allegations ot denials, and the Court need

not considet "unsuppotted

assertions"

or

"self-serving opinions without objective

corroboration." Ifuans u. Techs. Application¡ dv Sera. Co., 80 F.3d 954, 962 (4th Ctt. 1996).

"fl]h.

pleadings, depositions, answers to interrogatories, and admissions, together with the

affidavits" should be viewed in the light most favorable to the non-movingpatq. Fed. R.
Civ. P. 56(c); Gralt u. Farley 13 F.3d 1,42,1,45 (4th Cir. 1,993) (internal citation and quotations

omitted). 'In essence, a summary judgment must

be gtanted

if no genuine issue of matetial

fact rcmains such that a reasonable jury could not return a verdict fot a nonmoving patty."
Gray

1,3

F.3d at 145 (citing Anderson

u.

Ubergt

Iabþ¡

Inc., 477 U.S. 242,248 (1,987)) (quotation

omitted).

III. DISCUSSION
In support of his motion for

summary judgment Defendant alleges the following

grounds: (1) Defendant is shielded from Plaintiffs claims

of false arrest

and malicious

prosecution based on the doctrine of public official immunity pef.'s Summ. J. Mot., at 5-10,

Docket Entry 19), and (2) Plaintiff has failed to fotecast evidence to support his 1983 claim
and that Defendant is shielded from liability under the qualified immunity

10-16.) In support of his motion for summary judgment Plaintiff
a

3

doctine.

Qd. at

asserts that the facts

detailed below indicate that Defendant used false information and fotged documents to
procure a wattaflt for Plaintiffs

,t.

arrest.

@1.'s Summ. J.

Mot. at 1"-3, Docket Entry 16.)

Defendant's Motion fot SummaryJudgment

Plaintiff asserts that Defendant is liable for false arrest and false incarcetation.
(Compl. at2,DocketE,ntry

2.)

Defendant contends that both qualifìed immunity and public

official immunity shield him from

19.)

liability.l

(Def.'s Summ. J. Mot., at 5-1,6, Docket Entty

The Fourth Circuit has established "that a public official cannot be charged with false

arrest when he arests a defendant pursuânt to a facially valid

warant. At most, such an

official can be pursued through a cause of action fot malicious prosecutitoî."2 Porterfield u.
l-"ott, 1,56

F.3d 563, 568 (4th Cir. 1998); Assa'ad-Faltas u. Carter, No. 1:14CV678, 201,4 WL

4566037, at*1.3 (À4.D.N.C. Sept. 15, 201,4), reþort and recommendation adoþted, No. 1:14-CV-678,

201.4WL 5361,342 (I\4.D.N.C. Oct. 21.,201,4), aÍtd,61,0 F. App'x 245 (4th C11.2015) (".A public

offìcial cannot be charged with false affest when he arrests a defendant pursuant to a facially

valtdwarnnt.") (intetnal citation and quotations omitted). Here, it is clear that Defendant is
a public

official and there was probable cause to obtain an affest wanant.3 "Thetefore, his

claim must be one for malicious ptosecution, rather than false affest ot imprisonment." Fiore
u. Benfeld,

No. 1:15CY271,2015 nfl,

551.'1.1.56,

at *2 (I\4.D.N.C. Sept. 16, 201'5) (internal

1

It is unclear from Plaintiffs complaint whether his false impdsonment claim and false incarceration
claims are based on state law ot pursuant to $1983.
2 Similarly, "where a person is arested by law enforcement personnel pursuant to a facially vahd
w^tta;nt, there can be no cause of action for fälse imprisonment asserted against the patty causing
the arrest, because the arest has been made pursuant to lawful authority." Dorn u. Town Of
ProEeritjt,375F. App'" 284,287 (4th Cir. 2010) (internal citation omitted and quotation omitted).
¡ A. discussion of why thete was probable cause to obtain ân ârrest w^rta;nt can be found below.
4

citation and quotation

omitted). "Although 'it is not entirely cleat whether

there is a separate

constitutional rþht to be free from malicious prosecution, if there is such a trght, the plaintiff
must demonstrate both an unreasonable seizure and a favorable tetmination of the criminal
proceeding flowing from the seizure."' Darhørn u. Homer,690 F.3d 183, 188 (4th Cir.

(citing Snider u. Seang

l-.ee, 584 F'.3d

193, 199 (4th Cir.

2009). Äs the Fouth

201,2)

Circuit has

recognized "'for probable cause to exist, thete need only be enough evidence to warrant the

belief of a reasonable offìcer that an offense has been ot is being committed; evidence
sufficient to convict is not required."' Id. at 191 (citing Brown u. Gilmore, 278 tr.3d 362, 367
(4th Cu.2002)).
F{ere, Plaintiff was not subject
probable cause to arrest

to an unreasonable

Plaintiff. This case is similar

Robert Brown was arrested fot a cdme he did not

seizure because Defendant had

to Brown u. Wiita, in which the plaintiff

commit. 7 F. ,{.pp'x 275,277 (4th Cit.

2001). The Court held that the officer's decision to arrest the plaintiff was

objectively

reasonable in light of the circumstances because

[(1)] Robett David Brown and the individual identified in the capias-"ftobert
S¡6¡¡¡¡"-shared the same first and last names, (ü) . . . the physical description
of "Robert Brown" provided by the undetcover officer matched quite closely
. consistent
Robert David Brown's description in the VCIN database, (*)
with infotmation concerning "Robert Brown," Robert David Brown lived in
the Smith Mountain Lake arca, and (iv) . . . the VCIN search identified only one
individual with the flust name, "Robett," and the last name, "Brown," matching
the physical description of the suspect "Robert Brown" and living in the Smith
Mountain Lake area. Based on this evidence, it was objectively teasonable for

Lieutenant Wüta to conclude that Robert David Brown was the "Robett
Brown" identified in the capias, even though this conclusion proved later to be
mistaken.

Id. at279.
5

Here, an attempted robbery occurted in a grocery stote parking

lot.

pl.'s

Summ. J.

Mot. at 6, Docket Etttry 1,6-2.) ,\ccording to the officer that reported to the scene of the
crime, the victim
stated that as he was at his vehicle with his shopping cart to load groceries into
from his
his car he was approached by the suspect. The suspect
^ppto^ched
6 parking spots away and stuck an[] object into the left side of fthe
rcàr
^pprox
victim]. [The victim] stated that he believed the object to be a knife or a set
of car keys. This is based on how the item felt and he was unable to visually
identift the item. The suspect demanded that fthe victim] hand over his
money. At this point, fthe victim] stepped away from the suspect and grabbed
a take from the bed of his ttuck. The suspect then stated "you don't want to
do this[.]"[ fihe victim] was able to get a hold of his phone to begin dialing
91.1. andat this point the suspect fled to his cat and headed west on North Point
Drive. flhe victim] idenufied the suspect vehicle as a red jeep liberty with
parttal tag #BJM. ffhe victim] identified the suspect as a black male apptox.
40 years of age, approx. 5'4"-5'6", approx.,200 lbs with short dark hair and
wearing a dark shitt. ,{ BOLO for the su[s]pect was put out ovet the radio.
Kroger employees advised that surveillance equipment is ptesent but they could
not access the footage until the morning shift arives.

(Id. at 4.)

Similar to Brown, Plaintiff is unable to establish a constitutional violation because,
although the underþing criminal proceedings were terminated in his favot, the prosecution
was suppoted by probable

cause. Like in Brown,whete the description of the suspect closely

resembled the plaintiff, the description of the suspect, in this case, wâs also very similar to

Plaintiff. "flh.

victim] identified the suspect as a black male apptox. 40 yeats of age, approx.

5'4"-5'6", approx., 200 lbs with short dark hait and weatinga dark shirt."
an African Âmedcan male, he weighs 250 pounds and he is

5'8.

Qd. at

(Id.)

Plaintiff is

5.)a Furthermote,

a Plaintiff contends that he is bald but Plaintiffs computerized criminal history indicates that
he has black hair. @1.'s Summ. J. Mot. at 5, Docket Entry 1,6-2.)
6

the victim was able to point Defendant out in a photo

xray.

(Pl.'s Summ. J. Mot. at 8-10,

Docket Entry 1,6-2.) The victim stated that he was 100% certaiîthat the photo graph of the

Plaintiff matched the assailant. In addition, the vehicles owned by the suspect and Plaintiff
were very

similar. The

burgundyJeep

suspect dtove a rcd Jeep

Liberty. (Id.)

license plate, the letters

the same sequence.

Liberty.

(Id. at

Lastly, the victim could only identiS'

BJM. (Id.)

a

4.)

Plaintiff drove

a

portion of the suspect's

These same letters matched Plaintiffls license plate in

Qd.) The Court concludes that, based on these facts, Defendant

ptobable cause to obtain awarraît to arrest

Plaintiff.

Durham,690 F.3d

^t190

had

(concluding

that there was probable cause to affest the plaintiff named Michael Durham even though he
was latet found not guilty of selling drugs because a confidential informant identified the dtug
dealer as Michael Durham thtee times, he lived in the same town as the suspect, the plaintiff
had a Tennessee ddver's license, the suspecthad a Tennessee license plate, and the plaintiffs

criminal history included two drug-related convictions).

Plaintiff contends that the victim never identified Plaintiff as his assailant and that
Defendant intentionally used forged documents to obtain ân affest

Mot. at 3, Docket Entry

w^ttant.

16.) ,\ccotding to Plaintiff another officer

(Pl.'s Summ. J.

named Amanda Cratg

conducted the photo aray with Plaintiff and forged the cotresponding documents to reflect

that the victim identified Ptaintiff as his assailant. Qd. at

2-3.) In his summaq/

motion, Plaintiff directs the Coutt's attention to the Sequential Identifìcatjon

judgment

Fotm.

Qd.;

Docket Entry 5 at 8-10.) Plaintiff suggests that the Court compare the way Officer Craig
writes het numbers to the numbers filled in on the Sequential Identification Form in the ateas
7

designated for the victim to enter

16)

information. (Pl.'s Summ. J. Mot.

^t2-3,

Docket E.ttty

Plaintiff argues that Offìcer Craig fraudulently ûlled out propottions of the Sequential

Identification Form that were supposed to be filled out by the

victim. Qd.) Plaintiff

contends that this is apparent based on a comparison of the writing style displayed by the
signatures and date signed by the victim and Officer

Craig.

(Id. at3.)

"lJnder North Carohna common law, police offìcers are considered public officials."
Smith

u.

MøndayNo. 5:12-CV-202,2014WL7341196, at x6 flX/.D.N.C. Dec. 23,2014) (citing

Schlossberg.

Goias,540 S.E.2d 59,56 (t\.C. Ct. App.

2000).

"Police officers enjoy absolute

immunity from personal liability for their discretionary acts done without cottuption or

malice." Id.

Qnternal quotation a¡d citatton

omitted). "An officer

acts with malice

if

the

act is (1) done wantonly, (2) conúary to the actor's duty, and (3) intended to be injutious to

another." Id. (internal quotation and citation omitted).
Assuming arguendo that Officer Craig did fraudulently forge the photo identifìcation

forms, there is no evidence that Defendant condoned and parttcipated

in

creating any

fraudulent document. Plaintiff only provides conclusory allegations that Defendant
knowingly used forged documents to obtain the atrest warrant. Id. (applying the public
official doctrine because "no evidence of malicious ot corrupt conduct" was presented by the

Plaintiff); Il/hitlock u. Greenlee, No. 1:10CV958, 2013WL 6247259, at x9 (N4.D.N.C. Dec.3,
201,3), report and recommendation adopted,

201,4) (concluding that "[e]ven

search

No. 1:10-CV-958, 2014WL 820299 (X4.D.N.C. ll;/ar

if a jury determines that ptobable

cause was lacking as

to the

of the vehicle and subsequent arrest, it still remains that the tecord is devoid of
8

3,

any

evidence showing maliciousness or corruption by Defendant");

see

al¡o Bishop u.CU.of Macvn,

620F. Âpp'" 148, 150 (4th Cir. 201,5) ("Here, the þlaintiffs] have neither alleged nor presented
any evidence demonstrating that fthe defendants] acted maliciously, corruptly, ot outside the

scope

of their official authority. Moreover, [the plaintiffs'] mere allegations of

negligence cannot defeat immunity."); Snith u. Garcia, No. 5:08-CY-577 -D,2010

at *4 (E.D.N.C. Aug. 20,2010) (conduct wâs not

lfl-

gross

3361653,

"corupt or malicious" and he did not

act

"outside of and beyond the scope of his duties" notwithstanding allegations that Defendant
shot the plaintiff and took too long to call a medic). Thus, Plaintiffls malicious ptosecution

claim fails because there was probable cause to ârrest Plaintiff and Plaintiff failed to ptovide
evidence creating a genuine issue

of material fact tegarding whether Defendant was corrupt

or acted with malice.

B. Plaintiffs Motion fot

SummaryJudgment

Being pro se, Plaintiffs motion for summary judgment is organized in a mannet in

which Plaintiff states separate facts and ptovides an argument to suppott each
Summ.J. Mot.

^t1-4,

Docket Entry

16.)

fact.

(Pl.

First, Plaintiff states that neither he nor his vehicle

fit the description of the suspect or the vehicle at issue in this case.

Qd. at

1,-2.) As

above, coupled with the photo identification, the Coutt finds that the desctiption

stated

of

the

suspect and Plaintiff wete close enough to obtain an affest war:ant.

Next, Plaintiff contends that because Defendant did not see video footage of the
incident, there was no evidence tying Plaintiff to the scene of the crime. Qd. at 2) Plaintiff
also contends that Defendant never saw the tag numbet on the vehicle leaving the scene of
9

the

crime.

However, the information obtained from the victim and the photo artay provided

sufficient evidence

to

establish probable cause

to obtain an arrest wùttarft under the

clfcumstances.

Lasdy, Plaintiff contends that Defendant "knew or at least should have known that he
had the wrong person . . . [and that Defendant] used forged documents and false information

to procure

^w^n^nt

Defendant knew

for fPlaintiffs] arest."s (d.

or should

documents to obtain a

at3.)

However, the test is not whethet

have known that he had the wrong person and used false

warrant. Plaintiff

has not satisfied the test to establish that there is

sufficient evidence to overcome the defense of public official immunity. As discussed above,

Plaintiff has failed to point to evidence that creates a genuine issue of

m

tetial as to whethet

Defendant acted "wantonly, (2) conftary to the actor's duty, and (3) intended to be injurious

to another." Snith, 201,4 WL

7341.1.96,

^t

x6. Thus, the Court finds Plaintifls argument

meritless.

C. Plaintiffs Defamation Claim

In his complaint, Plaintiff also contends that Defendant 'liciously slandered
fPlaintiffls] character on public T.V." by "tun[ning] [hls] name, picture and addtess on public

T.V. (Cdme Stoppers)." (Compl. at 4, DocketF,nty

2.)

Á.ccording to

Noth

Carolina law

"fs]poken communication to a third person of false and defamatory words which 'tend to
prejudice another in his reputation, office, ttade,business, or means of livelihood'is actionable

5 Plaintiffs only other argument is that Officer Craig identified Plaintiff as the assailant by fraudulent
means. (Pl. Summ. J. Mot. zt 2-3, Docket Entry 16.) The Court has already addressed this
argument in the ptevious section.
10

slander."' Aaeritt u. Ro7fer,119 N.C. App. 216,218,
u. Kìngs Deþartrzent Stores,57

458 S.E.2d 26, 28 (1995) (citing

N.C. App. 13, 20,290 S.E.2d 732,736, di¡c.

Morow

reuiew denied 306

N.C.

385,294 S.E.2d 210 (1,982)). "slanderper seis anotalcommunication to a third person which
amounts to (1) an accusation that the plaintiff committed

a crimeinvolving moral turpitude;

Q) un allegation that impeaches the plaintiff in his trade, business, or profession; or (3) an
imputation that the plaintiff has a loathsome disease." Aueritt,119 N.C. App. at 21.8,458
S.E,.2d

^t

28. (internal citation

are otherwise considered

omitted). A qualified privilege may apply to statements that

defamatory.

Shìllington u. K-Mart Corp.,102 N.C. ,{.pp. 187, 1,94-95,

4025.8.2d 155,1,59 (1,991). The qualified privilege applies to a defamatory statement
when made (1) in good faith, Q) on subject matter (a) in which the declarant
has an interest or þ) in teference to which the declatant has a dght or duty, (3)
to a person having a corresponding intetest, ttght, or duty, (4) on a privileged
occasion, and (5) in a mannet and undet circumstances fafuly warranted by the
occasion and duty, right or interest.
Id. (ciang

Shreue u.

Duke Power C0.,97 N.C. Âpp. 648, 650-51,,389 S.E.2d 444,446 (1990).

Here, the evidence, when considered in the light most favorable to Plaintiff, establishes

that Defendant submitted Plaintiffs information to Crime Stoppers. 'lWhere the occasion
is privileged, there is a presumption that the defendant acted in good faith and the plaintiff
has the burden of ptoving that the statement was made

App. at 219, 458 S.E.2d

^t

29. "If

with actual malice." Auerilt,l19 N.C.

the plaintiff cannot show actual malice, the qualifìed

pdvilege becomes an absolute privilege, and thete can be no recovery even though the
statement was

false." Id. The circumstances show that Plaintiffs infotmation

submitted to Crime Stoppers in the course of a privileged occasion.
1.1.

was

Itis axiomaicthat"a

police officer has an interest

in

undertaking an investigation into allegations

of

criminal

conduct and in engaging in good faith effort" to reach out to someone that has infotmation
about a suspect.

Id.

Furthermore, the public has an intetest in knowing the identity of

potential dangetous suspect.

Múrry

u. Chaþel

Hill

Police

a

Dtþ't, No. 1:06CV984, 2008 WL

762260, at*14 (À4.D.N.C. M:ar. 1.9,2008), aÍtd,289 F. App'x 605 (4th Cir. 2008) (concluding

that the defendant's statement to the plaintiffs wife indicating that she should get tested fot

AIDS because one of the women the plaintiff taped had AIDS "falls well within the ambit of
the qualified privilege desctibed by the

Notth CaroknCourt of Appeals "); Aueritt,119 N.C.

Âpp.at 219, 458 S.E.2d at 29 þolding that statements made by the defendants during the
course of theit investigation to the alleged victim and a potential witness suggesting that the

plaintiff had kidnapped and murdered an investig tor who had been employed by the
plaintiffs former wife were protected by the privilege); Kling

u.

Han'is Teeter lnc.,338 F. Supp.

2d 667 ,673 CX/.D.N.C. 2002) , afd,86 F. App'x 662 (4th Cir. 2004) (holding that the defendant
was not liable fot wtitten libel for executing

^fl

arrestwarrant fot latceny because the plaintiff

failed to establish that evidence that the defendant acted with

malice). Plaintiff

failed to come

forward with any evidence to tebut the presumption that defendant was acting in good faith

by submitting Plaintiffs information to crime stoppers or to show that defendant Johnson
was acting with actual

malice. Thus, Plaintiffs deformation claim fails because Defendant's

qualified privilege applies to his submission of PlaintifFs information to Crime Stoppers.

72

IV. CONCLUSION
Fot the reasons stated herein,

IT

IS THEREFORE RECOMMENDED that the

Court GRANT Defendant's motion fot summary judgment @ocket Entry 18).

The Court FURTHER RECOMMENDS that Plaintiffs motion for summary
judgment pocket E.ttty 16) be

DENIED.

L

W'eüarer

Stn,cr lrl4gi*trr¡* Judgt

November 10,201.6
Durham, North Carcbna

13