Mallory v. Holdorf et al
Filing
76
ORDER AND OPINION granting 8 Motion for Summary Judgment and dismissing Plaintiff's claims pursuant to 42 U.S.C. § 1983 with prejudice. Signed by Chief Judge Margaret B Seymour on 9/28/2012.(asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Justin Wright Mallory, Sr.,
)
)
Plaintiff,
)
v.
)
)
Travis Holdorf, Stan Smith and
)
Randy Strange,
)
)
Defendants.
)
______________________________)
Civil Action No. 3:11-03295-MBS
ORDER AND OPINION
Plaintiff Justin Wright Mallory, Sr. (“Plaintiff”), filed this action pursuant to 42 U.S.C. §
1983 against officers of the Richland County Sheriff’s Department (“RCSD”), Travis Holdorf
(“Holdorf”), Stan Smith (“Smith”), and Randy Strange (“Strange”) (collectively, “Defendants”).
Plaintiff seeks to recover damages from Defendants for alleged violations of his Fourth, Sixth,
Eighth, and Fourteenth Amendment rights, which infringements occurred during the course of
his arrest and prosecution for the murder of his wife, Nekia Gibson Mallory (“Plaintiff's wife”),
for which Plaintiff was ultimately found not guilty. Plaintiff specifically contends that each
Defendant knowingly fabricated evidence against him and concealed exculpatory evidence that
caused his arrest and prosecution for the murder.
This matter is before the court on Defendants’ motion for summary judgment on all
claims asserted against them, which motion was filed on December 20, 2011. (ECF No. 8.)
Plaintiff opposes Defendants’ motion for summary judgment on grounds that material questions
of fact exist as to his right to recover against Defendants. (ECF No. 52.)
For the reasons set
forth below, the court GRANTS Defendants’ Fed. R. Civ. P. 56 motion for summary judgment
as to Plaintiff’s claims.
1
I.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The facts as viewed in the light most favorable to Plaintiff are discussed below.
In the early morning hours of May 14, 2006 (Mother’s Day), Plaintiff’s wife was stabbed
multiple times inside the apartment home she shared with Plaintiff, which apartment was located
at the Hunter’s Mill Apartment Complex on 1103 Pinelane Road in Richland County, South
Carolina. (ECF No. 1, p. 2.) At approximately 3:30 a.m. on May 14, 2006, Plaintiff arrived
home and found his wife unconscious, beaten, bloody, and lying in a pool of blood. (ECF No. 1,
p. 2.) At 3:35:04 a.m., Plaintiff called 911 and remained on the phone with them until 3:37:32
a.m. (ECF No. 52-3, p. 2.) Plaintiff then loaded his wife into his white van and drove her to the
emergency room at Providence Hospital Northeast (“Providence Hospital”) in Richland County.
(ECF No. 1, pp. 2-3.) Plaintiff’s wife was pronounced dead shortly after arriving at Providence
Hospital. (Id. at p. 3.)
At approximately 5:15 a.m. on May 14, 2006, Holdorf, a homicide investigator with the
RCSD, arrived at the Providence Hospital and met Plaintiff. (ECF No. 8-8, pp. 6-7.) Plaintiff
agreed to accompany Holdorf to RCSD’s headquarters in order that Holdorf could document
Plaintiff’s version of events. (Id.) During their conversation, Plaintiff told Holdorf that he
worked on Saturday, May 13, 2006, from 7:30 a.m. until 12:00 p.m.1 (ECF No. 8-7, p. 3.)
Plaintiff went home after work and he and his wife fell asleep on separate couches until about
5:00 p.m. (Id. at p. 4.) Plaintiff then left for a period of time, making stops for food and
beverages. (Id.) Upon returning home, Plaintiff drank an alcoholic beverage with his wife and
their neighbor, Dawn Kenny. (Id.) Plaintiff then left his wife to meet his paramour, Rikki Cook
1 At his deposition, Plaintiff testified about his conversation with Holdorf at RCSD’s headquarters.
2
(“Cook”). (Id. at pp. 4-5.) Plaintiff picked up Cook at her sister’s Bush River Road apartment
complex, and they went out for a meal, checked into a room at the Economy Inn on Broad River
Road, and stayed there until approximately 3:15 a.m. (Id. at pp. 5-6.) Plaintiff then stopped at a
convenience store to buy some items, returned Cook to her sister’s apartment, and drove home
arriving there some time between 3:30 a.m. and 3:40 a.m. (Id. at p. 6.) Upon arrival at his
apartment, Plaintiff went to the porch, looked inside the apartment, and observed his wife on the
floor lying in a pool of blood. (Id.) Plaintiff discovered the front door unlocked and he
proceeded to walk inside the apartment.
(Id.)
Plaintiff went to his wife, but she was
unresponsive. (Id. at p. 7.) Plaintiff then went outside and started beating on neighbors’ doors
for help, which caused Shaheed Hargraves to come and offer help to Plaintiff. (Id.) Plaintiff
then picked up his wife, placed her in his white van, and took her to the hospital. (Id. at p. 9.)
After their initial conversation, Holdorf told Plaintiff that an investigator would need to
speak with Cook. (ECF No. 8-2, p. 3.) At approximately 7 a.m., Plaintiff escorted Holdorf and
Strange, a sergeant with the RCSD, to the apartment of Cook’s sister. (Id.) Strange remained
behind to interview Cook while Holdorf and Plaintiff returned to the RCSD’s headquarters. (Id.)
Strange learned from Cook that Plaintiff had dropped Cook off at her sister’s apartment at 3 a.m.
or shortly thereafter. (Id. at p. 4; see also ECF No. 8-10, pp. 13-14.)
In addition, Strange
measured the amount of time it took to travel from Cook’s sister’s apartment to Plaintiff’s
apartment, which drive took 19 minutes at a rate of speed of 65 miles per hour. (Id.)
After Plaintiff and Holdorf returned to RCSD’s headquarters, Holdorf took a written
statement from Plaintiff.
examination.
(Id. at p. 3.)
(ECF No. 8-7, p. 12.)
Plaintiff also agreed to submit to a polygraph
While waiting for the polygraph examiner, Plaintiff
mentioned to Holdorf the names of Porch and “Vince, the maintenance guy” as possible
3
suspects. (ECF No. 8-2, p. 4.) Plaintiff proceeded to fail the polygraph test (according to
Defendants). (ECF No. 8-10, p. 18.)
While the investigation was ongoing, Investigator Round (“Round”) of the RCSD
interviewed a neighbor of Plaintiff named Dennis Tentyon (“Tentyon”). (ECF No. 8-2, p. 5.)
Round learned from Tentyon that he had heard a man’s voice yelling for help a few minutes after
3 a.m. (Id.) Tentyon further said that he had been with a woman, Sherry Tribble (“Tribble”),
who had heard more than he did. (Id.) Tentyon said that Tribble heard a woman’s voice asking
“why” and heard a man’s voice a short time later, which voices in combination sounded like a
married couple having an argument. (Id.) At the time of Round’s interview of Tentyon, Tribble
was at church. (Id.)
As the investigation continued to unfold, Holdorf and Strange communicated everything
they learned to Smith, the captain of the RCSD’s major crime unit, to keep him abreast of the
situation. (ECF No. 8-2, p. 5.) As he was updated on the status of the investigation by Holdorf
and Strange, Smith then consulted with John Meadors, a deputy solicitor with the Richland
County Solicitor’s Office. (ECF No. 8-9, p. 9.) After communicating the facts that had been
uncovered by the investigators, Smith was told by Meadors that he believed probable cause
existed and authorized Smith to seek an arrest warrant against Plaintiff for murder. (ECF No. 811, pp. 23-24.)
Thereafter, Holdorf communicated to Plaintiff that he was being arrested and charged
with his wife’s death. (ECF No. 8-2, p. 5.)
Holdorf prepared a warrant worksheet, which document was used to prepare a warrant
affidavit. (ECF No. 8-8, pp. 13-14.) Based upon the contents of the arrest warrant affidavit,
Richland County Magistrate Judge Kirby D. Shealy, Jr. (“Judge Shealy”) determined that
4
probable cause existed for Plaintiff’s arrest and issued Arrest Warrant I-977265 against Plaintiff
on May 15, 2006. (ECF No. 8-3.) Specifically, Plaintiff’s arrest warrant stated that probable
cause existed based on the following facts:
That on 05/14/2006 while at 1103 Pinelane Rd. Apt. 331 C in the Dentsville
Magisterial District of Richland County, one Justin Mallory did commit the crime
of Murder in that he did with malice and aforethought stab and beat the victim,
Nakia Mallory, his wife. Moments before the victim’s death a witness heard a
female call out from the incident location. The witness observed a subject run
from the scene to the defendant’s van and get into the van. The defendant has
given a written statement that places him at the scene at the time of the incident.
RCSD case no. 06051299-14. Affiant and others are witness to prove the same.
(Id.)
Strange followed up on Plaintiff’s suggestion of suspects by meeting with Porch and his
wife, Persia (“Porch’s wife”). (ECF No. 8-10, p. 20.) After explaining to Porch and his wife
why he was there, Strange learned that Porch and his wife knew Plaintiff and his family. (Id. at
pp. 20-21) During this meeting, Porch’s wife confirmed that Porch was home in the early hours
of the morning. (Id. at p. 21.) In addition, Strange observed Porch’s body and did not see any
scratch marks on his face, neck, or arms. (Id.)
Holdorf eventually made contact with Tribble by way of telephone. (ECF No. 8-2, p. 5.)
Tribble stated that she heard a woman ask “why” and “how could you” several times. (Id.)
After hearing the woman’s voice, Tribble heard a man’s voice, but did not understand what he
said. (Id.) Tribble then looked outside and saw a white van parked in front of the apartment
building across from her. (Id.) Tribble eventually heard the man’s voice again and understood
him to say, “look what you made me do” and “look what you did.” (Id.) Tribble again looked
outside and observed that the white van had been moved and its doors were open. (Id.) Tribble
saw a man run to the van, get in, and drive off. (Id.) Tribble agreed to come to the RCSD’s
headquarters on May 16, 2006 and provide a statement. (Id.)
5
Plaintiff was tried twice in the Richland County Court of General Sessions for the murder
of his wife. The first trial in July 2007 resulted in a hung jury and mistrial. (ECF No. 1, p. 4.)
At the first trial, Porch provided testimony that he was present at the moment Plaintiff stabbed
his wife. (ECF No. 52-19, pp. 6-8.) The second trial in December 2008 resulted in the trial
judge acquitting Plaintiff of the murder charge. (Id.) After Plaintiff’s second trial, the RCSD
opened a new investigation, which resulted in Porch being arrested and charged with the murder
of Plaintiff’s wife. (Id.) Porch is presently awaiting trial on this charge. (Id.)
On December 2, 2011, Plaintiff filed this action pursuant to 42 U.S.C. § 1983 against
Defendants, alleging violations of his civil rights protected by the Fourth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution and the Constitution of the State of
South Carolina.2 (ECF No. 1.) Plaintiff specifically alleged claims of false arrest, malicious
prosecution, and due process violations. (Id.)
Defendants answered the complaint denying Plaintiff’s claims on December 20, 2011.
(ECF No. 7.) Also, on December 20, 2011, Defendants filed a motion for summary judgment,
which motion was filed before any discovery had been conducted.3 (ECF No. 8.) Plaintiff filed
opposition to Defendants’ motion for summary judgment on August 3, 2012, to which
Defendants filed a reply in support of summary judgment on August 27, 2012. (ECF Nos. 52,
62.)
2 Plaintiff also has a state action pending against Defendants and others for state law claims including malicious prosecution, false arrest, abuse
of process, negligence, intentional infliction of emotional distress, defamation, civil conspiracy to commit fraud, and wrongful death, arising
out of the underlying incident.
3 In his state action, Plaintiff had the opportunity to depose Holdorf and Smith. After these depositions, Plaintiff interviewed Porch’s wife,
who provided a statement that Defendants “coached” her husband as to his testimony against Plaintiff. Plaintiff did not have a chance to
question Defendants about these new allegations, because the state action was stayed pending the completion of the criminal trial against Porch
for the murder of Plaintiff’s wife.
6
II.
A.
LEGAL STANDARD AND ANALYSIS
Standard
1.
Summary Judgment
Summary judgment should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect the
disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248–49 (1986). A genuine question of material fact exists where, after reviewing the record as a
whole, the court finds that a reasonable jury could return a verdict for the nonmoving party.
Newport News Holdings Corp. v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011).
In ruling on a motion for summary judgment, a court must view the evidence in the light
most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121,
123-24 (4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment
with mere allegations or denials of the movant’s pleading, but instead must “set forth specific
facts” demonstrating a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Shealy v.
Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). All that is required is that “sufficient evidence
supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’
differing versions of the truth at trial.”
Anderson, 477 U.S. at 249.
“Mere unsupported
speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat’l Ass’n of
Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue
of material fact solely with conclusions in his or her own affidavit or deposition that are not
7
based on personal knowledge. See Latif v. The Community College of Baltimore, No. 08-2023,
2009 WL 4643890, at *2 (4th Cir. Dec. 9, 2009).
2.
Claims pursuant to 42 U.S.C. § 1983
42 U.S.C. § 1983 is the vehicle by which individuals make legal claims for violations of
their federal rights. See Kendall v. City of Chesapeake, 174 F.3d 437, 440 (4th Cir. 1999). To
establish a cause of action under § 1983, a plaintiff must allege: (1) the violation of a right
protected by the Constitution or laws of the United States, and (2) that the defendant was acting
under color of law.4 Parratt v. Taylor, 451 U.S. 527, 535 (1981). When an unreasonable seizure,
arrest or prosecution is alleged, such a claim is governed by the Fourth Amendment. Brooks v.
City of Winston–Salem, 85 F.3d 178, 183 (4th Cir. 1996).
a.
False Arrest or False Imprisonment
To establish a Fourth Amendment false arrest or malicious prosecution claim, the
plaintiff must establish that probable cause did not exist for his arrest. Id. Probable cause is
defined as facts and circumstances within the officer’s knowledge that are sufficient to warrant a
prudent person, or one of reasonable caution, in believing that the suspect has committed an
offense. Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992). If probable cause existed for the
plaintiff’s charges, then the Fourth Amendment claim must fail. Probable cause exists when
“facts and circumstances . . . are sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the suspect has committed, is committing,
4 42 U.S.C. § 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any
action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
8
or is about to commit an offense.” Porterfield, 156 F.3d at 568 (quotations omitted). Probable
cause requires more than “bare suspicion” but requires less than evidence necessary to convict.
Id. “It is an objective standard of probability that reasonable and prudent persons apply in
everyday life.”
Id.
And when it is considered in the light of all of the surrounding
circumstances, even “seemingly innocent activity” may provide a basis for finding probable
cause. Id. Finally, at the time of the arrest, police officers need probable cause that a crime has
been committed, not that the criminal defendant committed all of the crimes for which he is later
charged. Wilkerson v. Hester, 114 F. Supp. 2d 446 (W.D.N.C. 2000).
A claim that a warrantless arrest is not supported by probable cause constitutes a claim of
false arrest or false imprisonment. Id. at p. 181. To establish a § 1983 claim based on a Fourth
Amendment violation for false arrest or imprisonment, a plaintiff must show that the seizure was
effected without probable cause. See Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002);
Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001); see also Brooks, 85 F.3d at 183. Thus,
there is no § 1983 claim for false arrest unless the officer lacked probable cause. Street v.
Surdyka, 492 F.2d 368, 372–73 (4th Cir. 1974). Therefore, a warrantless arrest is valid if the
arresting officer has probable cause to believe the suspect has committed an offense, and the
officer’s decision that probable cause is present is reviewed under a totality of the circumstances
test. See Illinois v. Gates, 462 U.S. 213, 238 (1983).
b.
Malicious Prosecution
To prevail on a Fourth Amendment malicious prosecution claim under § 1983, a plaintiff
must show that: (1) the defendant initiated or maintained a criminal proceeding; (2) the criminal
proceeding terminated in the plaintiff's favor; (3) the proceeding was not supported by probable
cause; and (4) the plaintiff suffered deprivation of liberty consistent with the concept of seizure
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as a consequence of a legal proceeding. See Lambert v. Williams, 223 F.3d 257, 260–262 (4th
Cir. 2000) (observing that a “malicious prosecution” claim under § 1983 is properly understood
as a Fourth Amendment claim for unreasonable seizure which incorporates the common law
malicious prosecution tort elements except for malice); Porterfield v. Lott, 156 F.3d 563, 568
(4th Cir. 1998).
c.
Due Process
The Fourteenth Amendment to the United States Constitution provides in part that no
State may “deprive any person of life, liberty, or property without due process of law.” U.S.
Const. amend. XIV. The Supreme Court has recognized there are three types of claims that may
be brought in a § 1983 action alleging violations of the Due Process Clause. First, the Due
Process Clause incorporates many of the specific protections defined in the Bill of Rights.
Zinermon v. Burch, 494 U.S. 113, 125 (1990). A plaintiff may bring suit under § 1983 for state
officials’ violation of his rights to, e.g., freedom of speech or freedom from unreasonable
searches and seizures. Id. Second, the Due Process Clause contains a substantive component
that bars certain arbitrary, wrongful government actions “regardless of the fairness of the
procedures used to implement them.” Id. (citing Daniels v. Williams, 474 U.S. 327, 331 (1986))
The Due Process Clause also encompasses a third type of protection, a guarantee of fair
procedure. Id.
3.
Qualified Immunity
The Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982), held that
“[g]overnment officials performing discretionary functions generally are shielded from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Id. at 818. Thus,
10
determining whether an official is entitled to qualified immunity requires that the court make a
two-step inquiry “in proper sequence.” Parrish v. Cleveland, 372 F.3d 294, 301-02 (4th Cir.
2004) (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)). As a threshold matter, the court must
determine whether, taken in the light most favorable to Plaintiff, the facts alleged show that the
conduct of the defendant violated a constitutional right. Id. If the facts, so viewed, do not
establish a violation of a constitutional right, the inquiry ends, and Plaintiff cannot prevail. Id.
If the facts do establish such a violation, however, the next step is to determine whether the right
violated was clearly established at the time of the alleged offense. Id. In determining whether
the right violated was clearly established, the court defines the right “in light of the specific
context of the case, not as a broad general proposition.” Id. “If the right was not clearly
established in the ‘specific context of the case’ - that is, if it was not ‘clear to a reasonable
officer’ that the conduct in which he allegedly engaged ‘was unlawful in the situation he
confronted’ - then the law affords immunity from suit.” Id. (quoting Saucier, 533 U.S. at 201).
B.
Analysis
1.
Probable Cause to Arrest Plaintiff
Defendants assert that the reasonable conclusions of their investigation established
probable cause to support the arrest of Plaintiff for the murder of his wife. (ECF No. 8-1, p. 13.)
First, Plaintiff had sufficient opportunity to commit the murder. (Id. at p. 15.) Defendants assert
that based on their timeline of events, Plaintiff had plenty of time to drop Cook off at
approximately 3 a.m., drive 19 minutes home, partake in an explosive altercation with his wife,
commit the murder at approximately 3:30 a.m., and call 911 at about 3:35 a.m. (Id.) Second,
there were no signs of forced entry at the crime scene, which fact suggests that the assailant
possessed a level of access and familiarity with the apartment home similar to what Plaintiff had.
11
(Id. at p. 17.) Third, Plaintiff was further incriminated by Tribble’s account, which included
hearing a domestic argument between a man and a woman, seeing Plaintiff’s van, and watching
a male individual enter Plaintiff’s van and drive off. (Id. at p. 14.) Fourth, Plaintiff lacked
credibility with Defendants in the early stages of the investigation after (1) Plaintiff professed to
having a “perfect” marriage while engaging in an affair that required lying to both his wife and
his girlfriend and (2) he failed a polygraph examination. (Id. at pp. 16-17.)
Defendants further assert that post-investigation events support the existence of probable
cause. First, probable cause for Plaintiff’s arrest is supported by the existence of a facially valid
arrest warrant issued by a neutral and detached judge. (ECF No. 8-1, pp. 18-19 (citing Brooks
and Porterfield). Second, Defendants assert that probable cause is supported by the magistrate
judge’s bounding Plaintiff’s murder charge to the Court of General Sessions after the
preliminary hearing was conducted and the purpose of a preliminary hearing is to establish that
probable cause exists to continue the criminal process. (ECF No. 8-1, p. 19 (citing State v.
Cunningham, 268 S.E.2d 289 (S.C. 1980). Third, Defendants relied on a pre-arrest legal opinion
from Meadors that probable cause existed. Meadors also so believed in the finding of probable
cause that the Richland County Solicitor’s Office prosecuted Plaintiff and continued to prosecute
Plaintiff even after the first mistrial. (Id. at pp. 19-20.) Fourth, Defendants assert that probable
cause to arrest Plaintiff is established by the Grand Jury of Richland County returning a True
Billed Indictment, 2006-GS-40-4607. (Id. at p. 21.) In this regard, Defendants argue that
“[w]here the Grand Jury has returned a true bill upon the charge made, such finding amounts to a
judicial recognition that probable cause does exist and infers prima facie probable cause for the
prosecution.” (Id. at p. 22 (citing White v. Coleman, 277 F. Supp. 292, 297 (D.S.C. 1967).)
Finally, Defendants contend that probable cause existed because the trial judges in Plaintiff’s
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two criminal trials in the Richland County Court of General Sessions denied multiple motions by
Plaintiff for directed verdict. (Id. at pp. 23-24.)
In his opposition to Defendants’ motion for summary judgment, Plaintiff contends that it
is undisputed that each Defendant acted under color of state law and that material questions of
fact exist as to whether each Defendant violated Plaintiff’s Fourth Amendment rights. (ECF No.
52, p. 18.) Plaintiff specifically contends that his Fourth Amendment rights were violated when
he was arrested at 11 a.m. on May 14, 2006, without a warrant and without probable cause to
support the arrest. (Id. at p. 19.) Plaintiff asserts that prior to his warrantless arrest, the false
allegation that he failed his polygraph examination was the only evidence that Plaintiff killed his
wife. (Id. at p. 21.) Therefore, Plaintiff argues that Defendants lacked probable cause to arrest
him at 11 a.m. on May 14, 2006, and, as a result, Defendants violated his Fourth Amendment
rights. (Id. at p. 22.)
Even assuming that Defendants subsequently developed evidence that would justify his
arrest and imprisonment, Plaintiff contends that material questions of fact exist as to when a
lawful arrest could have been made. (Id.) In this regard, Plaintiff argues that the judge’s finding
at the preliminary hearing, the grand jury indictments, and the denial of directed verdict motions
by the two trial judges are no defense to the wrongful arrest and false imprisonment before the
police developed probable cause to arrest Plaintiff. (Id.) Plaintiff further argues that Defendants
only had mere suspicion at best that Plaintiff might be his wife’s murderer and that is not enough
to establish probable cause. (Id. at p. 23 (citing Gomez v. Atkins, 296 F.2d 253, 262 (4th Cir.
2002)).)
Plaintiff also asserts that Defendants’ lack of probable cause for Plaintiff’s warrantless
arrest was not cured after Defendants obtained an arrest warrant from Judge Shealy. (ECF No.
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52, p. 24.) Plaintiff argues that the warrant affidavit is defective on its face because (1) Holdorf
did not sign the warrant affidavit although he is the affiant; (2) there is no evidence that the
officer who signed for Holdorf was duly sworn; (3) the warrant affidavit does not contain a
notary stamp; and (4) the signer’s name is illegible. (Id.) Plaintiff further asserts that the
warrant affidavit contains false statements and omits material statements. (Id.) Plaintiff argues
as follows:
First, if Nekia Mallory was murdered at 3:30 a.m. as Holdorf speculated, there
was no witness who heard a female call out “moments before the victim’s death.”
To the contrary, Sherry Tribble told Holdorf that she only heard a female voice
the first time she heard voices outside her window. When the argument ended,
there was a 30 to 45 minute period of silence before she heard a male voice. If
the witness heard a female voice “moments before the victim’s death,” the death
must have occurred between 2:45 a.m. and 3:00 a.m. But Holdorf knew from the
Rikki Cook interview that Mr. Mallory had dropped Ms. Cook off at 3 a.m., or
shortly after, and that Mr. Mallory claimed he dropped Ms. Cook off at 3:15 a.m.
Hence Mr. Mallory could not have been home to commit the murder at this time.
Holdorf thus intentionally omitted all references to the 30 to 45 minute gap and
thereby disregarded readily available exculpatory evidence to create probable
cause.
Second, Mallory’s written statement did not remotely place him at the “scene of
the incident” at the same time Ms. Tribble heard the domestic argument and later
saw the male run to the van. In the statement, Mr. Mallory estimated that he
stayed with Ms. Cook at the Economy Inn motel until 3:15 am. He then “dropped
Rickie off at her sister’s apartment and went home.” If it took 19 minutes to drive
this distance as Strange concluded, Mallory’s written statement would put him
home well past the time Tribble saw the person drive off in the van.
(Id. at p. 25.)
As a result of the misrepresentations in the warrant affidavit, Plaintiff argues that the
arrest warrant issued by Judge Shealy was tainted with incorrect information. (ECF No. 52, p.
34.) Plaintiff then extrapolates that every event after the issuance of the warrant affidavit was
tainted including his bond hearing, the Grand Jury Indictment, and court rulings through his
acquittal. (Id. at pp. 35-36.)
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2.
Qualified Immunity
Defendants argue they are entitled to qualified immunity because they did not violate
Plaintiff’s Fourth Amendment rights since there was probable cause to support his arrest. (Id. at
p. 26.) In this regard, Defendants contend they are entitled to immunity because Smith conferred
with a prosecutor, Meadors, before the warrant was issued; Meadors opined to Defendants that
probable cause existed for Plaintiff’s arrest; and a neutral and detached magistrate judge, Shealy,
issued the arrest warrant. (ECF No. 8-1, pp. 26-29 (citing Wadkins v. Arnold, 214 F.3d 535 (4th
Cir. 2000)5; Gomez v. Atkins, 296 F.3d 253 (4th Cir. 2002)).)
Defendants further contend that the unconstitutionality of their conduct was not clearly
established such that a reasonable police officer in their positions would have known that their
conduct was unlawful. (ECF No. 8-1, p. 31.) In this regard, Defendants state that an objectively
reasonable police officer in any one of their positions would have formed the good faith belief
that Plaintiff killed his wife, in light of the following variables:
(1) the gripping version of events as communicated by Tribble, a credible witness,
would have provided at a minimum, a basis in fact that Plaintiff was involved in
his wife’s murder; (2) the distinctive modus operandi of a domestic homicide
perpetrator in light of the husband just having sexual intercourse with another
woman and the volatile nature of the altercation that ensued; (3) the husband’s
seeming resentment toward his wife, all the while describing his marriage as
“perfect” and failing the polygraph; (4) his ability or opportunity to commit the
crime as law enforcement develops a realistic timeline; and finally, (5) the bloody
crime scene wherein it appears that the perpetrator did not force entry and then
ostensibly made some attempt to clean up.
(Id.) Moreover, an objectively reasonable police officer would have believed that he could rely
on the judgment of a veteran prosecutor in addition to a county magistrate, who both concluded
5
In Wadkins, the Fourth Circuit Court of Appeals found that the fact that the officer consulted with a prosecutor prior
to obtaining an arrest warrant supported his qualified immunity defense. The Court explained that “Detective Arnold’s
conference with the Commonwealth’s Attorney and the subsequent issuance of the warrants by a neutral and detached
magistrate weigh heavily toward a finding that Detective Arnold is immune.” Wadkins, 214 F.3d at 541.
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that probable cause existed. (Id.) Defendants assert that their defense compares favorably to the
Gomez case where the Fourth Circuit found that “to the extent that Atkins discounted Isidro’s
alibi or interpreted certain evidence, our review must assess whether, in so doing, he acted in an
objectively reasonable manner, i.e., whether an objective officer could have reasonably believed
there was probable cause for an arrest.” (ECF No. 62, p. 29 (citing Gomez v. Atkins, 296 F.2d
253, 261 (4th Cir. 2002)).)
Plaintiff contends that Defendants have conceded that at the time of Plaintiff’s arrest, the
right to be free of arrest without probable cause was clearly established. (ECF No. 52, p. 42
(citing ECF No. 8-1, p. 13).) As a result, Plaintiff argues that summary judgment should not be
granted on qualified immunity grounds because the affidavit of arrest was so totally lacking in
indicia of probable cause and so contrary to the actual evidence the police had obtained at the
time that no objective law enforcement officer would have concluded that probable cause existed
for Plaintiff’s arrest. (Id. at p. 42.)
3.
Evidence of Other Constitutional Violations
Defendants assert that the record is devoid of evidence to support alleged violations of
Plaintiff’s Sixth, Eight, and Fourteenth Amendment rights. (ECF No. 8-1, pp. 32-34.)
Defendants contend the Eighth Amendment does not apply to Plaintiff’s claims and
Fourteenth Amendment claims are not cognizable in the Fourth Amendment context. (Id.)
Plaintiff contends that his due process rights were violated by his improper seizure
without a warrant or probable cause and the issuance of an arrest warrant without probable
cause. (ECF No. 52, p. 38.) Plaintiff makes an additional due process argument that Defendants
fabricated evidence through the testimony of Tribble and Porch. (Id.) As support for this third
claim, Plaintiff submitted statements from Porch’s wife, which statements Plaintiff contends
16
support the conclusion that Defendants induced Porch to give false testimony. (Id.) Plaintiff
specifically cited to the following comments from Porch’s wife:
Joshua told me that he was told it would make more sense to say that he and
Nekia were fooling around, so he agreed to put that in his statement. I do not
know which officer told him that but the two main officers who were talking were
Holdorf and Smith. When I was asked in an earlier statement if Joshua had ever
admitted to me that he had lied to the police, I said he made it sound like a lie that
was understood because he told me hey were leading him to say things that were
not true, therefore they understood it was a lie. (ECF No. 52-17, p. 2.)
Q: Regarding the interview at the Sherriff’s department before Joshua’s arrest,
could you explain what Joshua told you about the kissing and fondling between
him and Nakia?
A: Joshua told me he was lying but the Sheriff’s Department knew. He told me he
only said this because the Sherriffs’s Department said it would make more sense
if they were making out, and they encouraged him to tell the lie. (ECF No. 52-18,
pp. 2-3.)
Plaintiff argues that the statements of Porch’s wife are not hearsay, but are evidence
showing that Defendants induced Porch to fabricate a story to support Plaintiff’s prosecution in
violation of his due rights.
4.
Statute of Limitations
Defendants assert that a three year statute of limitations is applicable to § 1983 claims in
federal court. (ECF No. 8-1, p. 34 (citing Huffman v. Tuten, 446 F. Supp. 2d 455, 459-460
(D.S.C. 2006) (referencing S.C. Code Ann. § 15-3-535).) Defendant further asserts that Plaintiff
had three years from the discovery of his constitutional deprivations in 2006 or 2007 to file his
complaint. (Id. at p. 35.) Because Plaintiff did not file his complaint until December 20, 2011,
Defendants argue Plaintiff failed to file suit within the applicable statute of limitations. (Id.)
Plaintiff contends that the statute of limitations for a malicious prosecution claim begins
to run from the date of a favorable termination, such as an acquittal on charges. (ECF No. 52, p.
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43 (citing Lambert v. Williams, 223 F.3d 257, 262 n. 3 (4th Cir. 2000) (the significance of the
favorable termination element is not only that it constitutes a prerequisite for recovery, but also
that it establishes the time from which the claim accrues for purposes of determining whether the
statute of limitations has run)).)
In this regard, Plaintiff asserts that he was acquitted on
December 5, 2008, and his complaint was filed on December 2, 2011, less than three years later.
(Id.) Therefore, Plaintiff argues his complaint was timely filed. (Id.)
5.
The Court’s Review
Plaintiff’s § 1983 claims are based on the premise that Defendants violated his
constitutional rights because they lacked probable cause at the time to arrest him for the murder
of his wife. In this case, the right to be arrested only on probable cause is clearly established.
See Miller v. Prince George’s Cnty., 475 F.3d 621, 627 (4th Cir. 2007) (“Unquestionably, [t]he
Fourth Amendment prohibits law enforcement officers from making unreasonable seizures, and
seizure of an individual effected without probable cause is unreasonable.”); see also Smith v.
Reddy, 101 F.3d 351, 356 (4th Cir. 1996). Therefore, in the context of Plaintiff’s arrest,
Defendants are entitled to summary judgment and/or qualified immunity if a reasonable officer
in Defendants’ position could have reasonably believed that probable cause existed to make a
warrantless arrest. See Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (“a warrantless arrest by
a law officer is reasonable under the Fourth Amendment where there is probable cause to believe
that a criminal offense has been or is being committed.”); Malley v. Briggs, 475 U.S. 335,
344-45 (1986) (“[o]nly where the warrant application is so lacking in indicia of probable cause
as to render official belief in its existence unreasonable will the shield of immunity be lost.”)
(citations omitted). To make this determination, the court must find that the information within
Defendants’ knowledge at the time of Plaintiff’s arrest justified a reasonable belief that Plaintiff
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probably caused the death of his wife.
Upon review, the court does not agree with Defendants that this case compares favorably
to the Gomez case. Nevertheless, the court is persuaded by the evidence of record that at the
moment of Plaintiff’s arrest and under the facts and circumstances known to Defendants at the
time, a reasonable law enforcement officer would have believed that there was a probability that
Plaintiff was responsible for the murder of his wife. Thus, Defendants satisfy the relatively low
threshold required by the Fourth Amendment that probable cause existed regarding Plaintiff’s
arrest. Moreover, because probable cause existed to arrest Plaintiff, Defendants did not violate
Plaintiff’s constitutional rights. Accordingly, Defendants are entitled to summary judgment on
Plaintiff’s claims for false arrest, malicious prosecution, and violation of due process rights
under § 1983.6
Furthermore, without evidence of a constitutional violation, the court is not required to
determine whether any rights Plaintiff has asserted were “clearly established” for purposes of
qualified immunity. See DiMeglio v. Haines, 45 F.3d 790, 799 (4th Cir. 1995) (“In many cases
where a defendant has asserted qualified immunity, dismissal or even an award of summary
judgment may be obviously warranted, based upon existing law, without the court ever ruling on
the qualified immunity question.”); Gordon v. Kidd, 971 F.2d 1087, 1093 (4th Cir. 1992) (“In
analyzing the appeal of a denial of summary judgment on qualified immunity grounds, it is
necessary first to identify the specific constitutional right allegedly violated, then to inquire
whether at the time of the alleged violation it was clearly established.”). As such, Defendants
6 In as much as Plaintiff attempts to claim violation of substantive due process, the Supreme Court has ruled that an individual alleging that
he was prosecuted in the absence of probable cause states no substantive due process claim, but instead the claim must be brought under the
Fourth Amendment. Albright v. Oliver, 510 U.S. 266, 275 (1994).
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are also entitled to summary judgment on their affirmative defense of qualified immunity.7
III.
CONCLUSION
Upon careful consideration of the entire record, the court hereby GRANTS Defendants’
motion for summary judgment with respect to Plaintiff’s claims pursuant to 42 U.S.C. § 1983.
(ECF No. 8.)
IT IS SO ORDERED.
/s/Margaret B. Seymour__________________
MARGARET B. SEYMOUR
CHIEF UNITED STATES DISTRICT JUDGE
September 28, 2012
Columbia, South Carolina
7 As this court finds that Defendants are entitled to summary judgment, it is unnecessary to address their statute of limitations argument.
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