Elkins v. Gibson
MEMORANDUM OPINION AND ORDER, GRANTING: 30 MOTION for Summary Judgment filed by Charlie Gibson. C/M Signed by District Judge J Ronnie Greer on 2/26/2013. (FMM, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
DAVID LEE ELKINS,
DET. CHARLIE GIBSON,
MEMORANDUM OPINION AND ORDER
On September 13, 2012, the defendant filed a Motion for Summary Judgment, [Doc. 30],
as to all claims in this section 1983 action.1 Specifically, the defendant asserts that he is entitled
to qualified immunity. He further asserts that the plaintiff fails to state a claim upon which relief
can be granted for the federal and state malicious prosecutions claims.
The plaintiff has
responded, [Doc. 35], and the matter is ripe for review.2 For the reasons set forth below, the
motion is GRANTED, and the case will be DISMISSED.
The facts taken in the light most favorable to the plaintiff are set forth below.3 On May 3,
2004, the plaintiff, as power of attorney, transferred $40,000.00 from his mother’s bank account
to an account in his name but marked “For Mae Elkins.” Thereafter, he wrote several checks
from the account. On June 3, 2004, he wrote a check from this account to his daughter in the
The defendant is sued in his individual capacity only.
The response was filed by Carl R. Ogle, Jr., Esquire. However, he withdrew from the case on December 4, 2012.
See [Doc. 44]. Since that time, the plaintiff has proceeded pro se.
The plaintiff seeks to exclude facts and exhibits submitted by the defendant on the basis that the defendant did not
know this information at the time of procuring the arrest warrant. It is clear from record and the context of the
depositions that the defendant was in possession of the information at the time he procured the warrant. Thus, the
request is denied.
amount of $1,000.00 for a graduation gift. He stated that he did this at Mae Elkins’ direction.
On August 13, 2004, he wrote a check to “FCB” (First Community Bank) for $1,100.00. The
plaintiff cannot explain the reason for writing this check. After Ms. Elkins’ death, on October
11, 2004, the defendant wrote a check to the nursing home that housed his mother for
$13,076.50. The balance left in this account after this check was $27,167.53. About six months
after Ms. Elkins’ death, the plaintiff and his wife applied for a loan for a truck and listed this
$27,167.53 as an asset.
In addition, the plaintiff’s brother Gene Elkins took issue with the validity of Ms. Elkins’
will. However, under both wills at issue, Ms. Elkins’ had directed that her bank accounts be
divided equally between the plaintiff and Gene Elkins. The plaintiff was deposed in the will
contest lawsuit on August 29, 2006, and denied moving any money out of Ms. Elkins’ accounts.
The defendant was aware of this lawsuit and apparently aware of Gene Elkins’ supposed threats
of criminal prosecution if the plaintiff failed to settle the suit according to his satisfaction.
However, the plaintiff continued to withdraw money from the “For Mae Elkins” account.
On March 2, 2007, the plaintiff wrote a check from the “For Mae Elkins” account for “cash” in
the amount of $10,000.00. The plaintiff used this money to pay the loan on his truck. On March
14, 2007, the plaintiff used $8,000.00 from the account to pay Leslie Shields, his attorney who
represented him in an IRS tax audit proceeding. On August 3, 2007, he wrote a check payable to
“cash” in the amount of $7,000.00. The plaintiff does not know what happened to this money.
On March 30, 2008, he used $3,300.00 of the money to pay on his truck loan. The plaintiff does
not deny that he used the money from the account for his personal use; however, he claims that
his attorney advised him that he could use the money.
The defendant discussed this information and other evidence from his investigation,
including the issue of the statute of limitations, with Assistant District Attorney Alex Pearson.
ADA Pearson opined that probable cause existed to obtain a warrant for theft over $10,000.00,
and he assisted in drafting the warrant. The warrant was issued on April 20, 2009, by a deputy
clerk. The warrant states:
IN 2008 AN INVESTIGATION WAS BEGAN (sic) BY
THE ROGERSVILLE POLICE DEPARTMENT INTO THE
THEFT OF FUNDS FROM MAE ELKINS ACCOUNTS.
DURING THE INVESTIGATION DET. CHARLIE GIBSON,
HAVE (sic) FOUND THAT IN MAY OF 2004 DAVID ELKINS
UNLAWFULLY USED HIS POWER OF ATTORNEY TO
REMOVE FUNDS FROM MAE ELKINS BANK ACCOUNT
AND PLACE THEM INTO ANOTHER INDIVIDUAL
ACCOUNT IN HIS NAME. BANK RECORDS WERE
OBTAINED FROM FIRST COMMUNITY BANK SHOWING
THAT $40,000.00 HAD BEEN REMOVED FROM MAE
ELKINS ACCOUNT. THE BANK RECORDS ALSO INDICATE
THAT PART OF THE MISSING MONEY TAKEN FROM MAE
ELKINS ACCOUNT WAS USED TO PAY ON A PERSONAL
THE SHUFFLING OF MONEY FROM ONE ACCOUNT TO
ANOTHER CONCEALED THE THEFT. AT THIS TIME I FEEL
THERE IS PROBABLE CAUSE TO CHARGE DAVID ELKINS
WITH THEFT OVER $10,000.00.
ADA Pearson stated that he knows of no facts contained in this warrant that are false or
misleading. ADA Pearson further opined that the statute of limitations had been tolled by the
plaintiff’s concealment of the theft. However, after the plaintiff’s arrest, the criminal charge was
dismissed by the criminal court judge because “it [was] outside the statute of limitations.”
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper where Athe pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue of material fact and that
the movant is entitled to judgment as a matter of law.@ Fed. R. Civ. P. 56(c). In ruling on a
motion for summary judgment, the Court must view the facts contained in the record and all
inferences that can be drawn from those facts in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat=l
Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh
the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of
material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a
showing, the non-moving party must present some significant, probative evidence indicating the
necessity of a trial for resolving a material factual dispute. Id. at 322.
A mere scintilla of
evidence is not enough. Anderson, 477 U.S. at 252; McClain v. Ontario, Ltd., 244 F.3d 797, 800
(6th Cir. 2000). This Court=s role is limited to determining whether the case contains sufficient
evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S.
at 248-49; Nat=l Satellite Sports, 253 F.3d at 907. If the non-moving party fails to make a
sufficient showing on an essential element of its case with respect to which it has the burden of
proof, the moving party is entitled to summary judgment.
Celotex, 477 U.S. at 323. If this
Court concludes that a fair-minded jury could not return a verdict in favor of the non-moving
party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at
251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
The party opposing a Rule 56 motion may not simply rest on the mere allegations or
denials contained in the party=s pleadings. Anderson, 477 U.S. at 256. Instead, an opposing
party must affirmatively present competent evidence sufficient to establish a genuine issue of
material fact necessitating the trial of that issue. Id. Merely alleging that a factual dispute exists
cannot defeat a properly supported motion for summary judgment. Id. A genuine issue for trial
is not established by evidence that is Amerely colorable,@ or by factual disputes that are irrelevant
or unnecessary. Id. at 248-52.
Again, the defendant claims that he is entitled to qualified immunity for the alleged
Fourth Amendment violations, i.e. false arrest, false imprisonment and malicious prosecution.4
In determining an officer’s entitlement to qualified immunity [this
Court] follow[s] a two-step inquiry.5 Saucier v. Katz, 533 U.S.
194, 201-02, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). First,
taken in the light most favorable to the plaintiff, [the Court]
decide[s] whether the facts alleged show the officer’s conduct
violated a constitutional right. Id. at 201. If no constitutional right
would have been violated were the plaintiff’s allegations
established, there is no need for further inquiry into immunity. If a
violation can be made out on a favorable view of the plaintiff’s
submissions, [the Court] next ask[s] whether the right was clearly
Vakilian v. Shaw, 335 F. 3d 509, 516-17 (6th Cir. 2003).
In general, government officials
performing discretionary functions are shielded “from civil damages liability as long as their
actions could reasonably have been thought consistent with the rights they are alleged to have
violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). “[A]ll but the plainly incompetent
or those who knowingly violate the law” are protected by qualified immunity. Malley v. Briggs,
475 U.S. 335, 341 (1986). The relevant question for the Court regarding whether the right was
clearly established is not the subjective intent of the defendant, but whether a reasonable officer
The plaintiff also alleges that the defendant violated his Fourteenth Amendment rights. However, “the Due
Process Clause of the Fourteenth Amendment does not require any additional procedures beyond those mandated by
the Fourth Amendment.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 313 (6th 2005). As such, that claim is
dismissed, and the Court will proceed with a Fourth Amendment analysis. To the extent the plaintiff asserts a
Fourteenth Amendment substantive due process claim, the Court will still use a Fourth Amendment analysis. See
Graham v. Connor, 490 U.S. 386, 395 (1989).
The Supreme Court has held that the Saucier approach is no longer mandatory, and the district courts can elect to
decide the second issue without determining whether a constitutional violation actually occurred. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). This Court will use the two step approach of Saucier.
would have believed the defendant’s conduct to be lawful, in light of the clearly established law
and information possessed by the defendant. Anderson, 43 U.S. at 640.
With respect to all claims, the existence of probable cause is essential to the
determination of whether the officer’s conduct violated the plaintiff’s Fourth Amendment
constitutional rights.6 In addition, in the false arrest context where false or misleading statements
in arrest warrants are alleged, the plaintiff must establish (1) a substantial showing that
the defendant stated a deliberate falsehood or showed reckless disregard for the truth, and (2) that
the allegedly false or omitted information was material to the finding of probable cause.
Vakilian, 335 F.3d at 517.
Here, there exists plenty of evidence in the record, evidence that was known to the
defendant at the time he sought the warrant, to support probable cause that the plaintiff
committed theft over $10,000.00. From this evidence a reasonable officer could have believed
that his actions were consistent with the plaintiff’s constitutional rights in seeking the warrant, in
arresting the plaintiff and in pursuing prosecution of the case. Therefore, no constitutional right
of the plaintiff was violated. As such, the defendant is entitled to qualified immunity as to all
The Sixth Circuit has recently set forth the elements of a Fourth Amendment malicious prosecution claim. The
To succeed on a malicious-prosecution claim under § 1983 when the claim is
premised on a violation of the Fourth Amendment, a plaintiff must prove the
following: First, the plaintiff must show that a criminal prosecution was initiated
against the plaintiff and that the defendant "ma[d]e, influence[d], or
participate[d] in the decision to prosecute." Second, because a § 1983 claim is
premised on the violation of a constitutional right, the plaintiff must show that
there was a lack of probable cause for the criminal prosecution . . . Third, the
plaintiff must show that, "as a consequence of a legal proceeding," the plaintiff
suffered a "deprivation of liberty," as understood in our Fourth Amendment
jurisprudence, apart from the initial seizure. Fourth, the criminal proceeding
must have been resolved in the plaintiffs favor. Id., at 308-09 (footnote and
some citations omitted).
Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010).
More specifically, in relation to the false arrest claim, the plaintiff argues that there were
omissions from and misrepresentations in the arrest warrant. However, this Court has reviewed
each of those claims and finds that they are without merit. While the omissions are contextual
and may help explain background information, they are immaterial to a determination of
Finally, the defendant argues that the motion should be granted on many grounds other
than qualified immunity.7 However, the Court need not address each of those, as the qualified
immunity analysis readily decides the case.
For the reasons set forth above, the defendant’s motion is GRANTED, [Doc. 30], and the
plaintiff’s case is DISMISSED WITH PREJUDICE.
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
The defendant argues that the plaintiff’s malicious prosecution claim fails to state a claim upon which relief can be
granted because the Complaint fails to state facts which indicate any detention apart from his arrest. See Sykes v.
Anderson, 625 F.3d 294 (6th Cir. 2010). As to the state malicious prosecution claim, the defendant argues that the
plaintiff has failed to state a claim for relief because he did not control the prosecution, but the assistant district
attorney general has that control. See Pera v. Kroger Co., 674 S.W.2d 715 (Tenn. 1984). Lastly, he argues in
regard to the false imprisonment claim that the finding of the indictment by the grand jury was fair on its face and
therefore it determined the existence of probable cause. See Barnes v. Wright, 449 F.3d 709, 716 (6th Cir. 2006).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?