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
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