Savage v. County of Stafford Virginia et al

Filing 128

MEMORANDUM OPINION Re: 100 MOTION for Partial Summary Judgment on Liability as a Matter of Law and Damages Pursuant to 42 USC 1983 by Tony Edward Savage. 105 Cross MOTION for Summary Judgment by Larry Wayne Sturdivant, Jr.. Signed by District Judge Liam O'Grady on 11/16/2010. Copy mailed to pro se plaintiff. (ktot, )

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-JFA Savage v. County of Stafford Virginia et al Doc. 128 1 L. E m IN T H E U N I T E D S T A T E S D I S T R I C T C O U R T 1 6 2010 FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division CLERK U.S. DISTRICT COURT ALEXANDRIA, VIRGINIA TONY EDWARD SAVAGE ) ) Plaintiff, v. C O U N T Y O F S T A F F O R D . V I R G I N I A , ct al.. Defendants. ) ) ) ) C i v i l A c t i o n N o . : l : 0 9 - c v - l 328 ) ) ) M E M O R A N1) IIM ( ) P1N10 N This matter comes before the Court upon P l a i n t i f f s Motion for Partial Summary J u d g m e n t (Dkt. No. 100), and D e f e n d a n t ' s M o t i o n for S u m m a r y J u d g m e n t (Dkt. No. 105). The parlies have fully briefed and argued the motions, and the matter is ripe for disposition. For reasons set forth below, it is h e r e b y O R D E R E D that P l a i n t i f f s Motion for Partial Summary Judgment is DENIED. D e f e n d a n t ' s M o t i o n for S u m m a r y J u d g m e n t is G R A N T E D in part and D E N I E D in pari. It is further ordered that P l a i n t i f f s p r a y e r for equitable relief is DISMISSED WITHOUT PREJUDICE. I. Background On the evening of October 18. 2009, Deputy Larry Sturdivant ("Sturdivant"), a deputy sheriff with the Stafford County S h e r i f f s Office, responded to a call to investigate a sexual assault on a ten-year-old girl. The alleged victim, Chyna Ashby ("Chyna"), lived at the residence of Plaintiff Tony Savage ("Savage") witli her mother. Linda Ashby ("Ashby"). The r e s i d e n c e is located in C i t y o f S t a f f o r d , S t a f f o r d County. VA. Once Sturdivant arrived at S a v a g e ' s home, Ashby i n f o r m e d him that, according to Chyna, Savage had "pinched and grabbed [Chyna's] breast," and "smacked her on the butt." D e f . ' s Mot. for Summ. J., Ex. A, Offense Report ("Offense Report") 3. Sturdivant then spoke to C h y n a directly. Chyna told Sturdivant that at around 4:30 p.m. Savage had beckoned her into the kitchen and " s m a c k e d " her on the butt. Id. When C h y n a c a m e into the kitchen later in the day, Savage allegedly "pinched her in the breast," and "grabbed her right breast in a groping motion." Id. Chyna informed Sturdivant that Savage's breath smelled like alcohol. Id. Sturdivant next went upstairs to discuss the incident with Savage. According to the Offense Report, Savage r e s p o n d e d to the allegations by i m m e d i a t e l y stating, "I d o n ' t k n o w w h a t you are talking about." Id. He told Sturdivant that he had been in Richmond until 2:30 p.m. that day. Id. Savage said he had not seen Chyna all day, but he did admit to having a Long Island Iced Tea that afternoon. Id.' S a v a g e ' s version o f this exchange differs from Sturdivant's in key respects. Savage claims that Sturdivant knocked on S a v a g e ' s bedroom door at 11:18 p.m., awaking him from sleep. Savage identified himself, entered the bedroom, and informed Savage about the allegations against him. Savage replied that he "had been gone most o f the weekend visiting with [his] brother who lives in Richmond." Third. Am. Compl. ^ 10; see also Aff. of Tony Edward Savage ("Savage Aff.") ffll 16-18. Savage then informed Sturdivant that he had not returned until 8:00 p.m. that evening, and offered in support of this alibi a credit card receipt from a gas station in Ruther Glenn, Virginia. Savage Aff. ^ 22. Sturdivant took this receipt, but he did not return it. Id. Savage also offered Sturdivant contact information for persons whom he claimed could attest to his whereabouts that afternoon. Third Am. Compl. ffl[ 10-11; Savage Aff. Savage denies telling Sturdivant that he had been drinking. Aff. of Tony Edward Savage ^ 32. 2 ^ 24. According to Savage, Sturdivant replied that it was " n o t his duty to call to verify [the] alibi," and that " i t was the c o u r t ' s responsibility to d e t e r m i n e i f the alibi w e r e true or n o t . " Savage Aff. H25. Savage also claims that Sturdivant "stated he believed after talking with [Ashby] that she may have put the girl up to making up the story because she told [Sturdivant] that she is unable to pay next m o n t h ' s rent and she is afraid that [Savage] was going to put her and her girls on the street." Id. at ^ 26; Third Am. Compl. ^ 15. Nevertheless, when another deputy arrived in S a v a g e ' s bedroom and asked to investigate S a v a g e ' s alibi, Sturdivant told him not to do so. Savage Aff. ffl| 28-29; Third Am. Compl. H 13. Sturdivant testified at S a v a g e ' s criminal trial that Savage had indeed attempted to show him a gas receipt, and that Savage had offered phone numbers o f people who could confirm his alibi. PL's Mot. for Summ. J., Ex 1, Trial Transcript 39-40. According to his testimony, Sturdivant did not pursue this alibi evidence because Savage had already told Sturdivant he was home at 2:30 p.m., and because Sturdivant was reluctant to speak to someone who was not present at the s c e n e w h i l e he investigated the crime. See id.; see a l s o id. at 98-99. Sturdivant omitted any mention o f S a v a g e ' s alibi in his Offense Report. After speaking to Savage, Sturdivant returned downstairs where Chyna completed a statement. Sturdivant again questioned Chyna, and her story remained consistent. Sturdivant conferred with his superiors, and ran a background check on Savage. The background check revealed no criminal history, but Sturdivant did find a prior report "where [Savage] attempted to get a 17 year old female to get in his car at a bus stop." Offense Report 3. At approximately 1:25 a.m., Sturdivant went back into the house and read Savage his Miranda rights. Savage reasserted that he had not seen Chyna all day. When asked about the prior incident involving the 17-year-old girl, Savage stated that "it w a s n ' t him, that it was someone else." Id. Sturdivant consulted with a superior, and placed Savage under arrest. Sturdivant transported S a v a g e to the magistrate j u d g e who issued an arrest warrant for misdemeanor sexual battery pursuant to Va. Code. § 18.2-67.4. The magistrate judge issued the warrant in error. As set forth on the face o f the warrant, Chyna was only ten years old. Therefore, the proper charge was aggravated sexual battery--a felony. See Va. Code § 18.2-67.3 ("[a]n accused shall be guilty o f aggravated sexual battery i f he or she sexually abuses the complaining witness, and . . . [t]he complaining witness is less than 13 years o f age"). Having realized the error, the Commonwealth's attorney notprossed the original warrant, and presented the c a s e to the grand j u r y . T h e g r a n d j u r y returned felony indictments for two counts o f aggravated sexual battery and one count o f taking indecent liberties with a child. On July 21, 2010, a j u r y found Savage not guilty. On November 2 7 , 2 0 1 0 , Savage filed a civil lawsuit against the County o f Stafford, the Stafford County S h e r i f f s Office, the Commonwealth's Attorney for Stafford County, an Assistant Commonwealth Attorney, Deputy Sturdivant, and several other law enforcement officers employed by the Stafford County Sheriffs Office. All claims against every defendant except for Sturdivant have been subsequently dismissed by order o f the Court. (Dkt. Nos. 34, 5 4 , 68). In his Third Amended Complaint, Savage alleges five grounds for recovery: (1) "Liability under Section 1983 for arresting Plaintiff in violation of the Fourth Amendment"; (2) "State Claim of False Arrest"; (3) "Negligence"; (4) "Deprivation o f Due Process"; and (5) "Malicious Prosecution." Savage also seeks to have his state criminal records expunged and sealed. II. Analysis Summary j u d g m e n t is p r o p e r " i f the pleadings, the discovery and disclosure materials on file, and any affidavits s h o w that there is no genuine issue as to any material fact and that the m o v a n t is entitled to j u d g m e n t as a m a t t e r o f l a w . " F e d . R. C i v . P. 56(c). " B y its very terms, this standard provides that the mere existence o f some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue o f material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 2 4 2 , 2 4 7 - 2 4 8 (1986). T h e issue o f material fact is not " r e q u i r e d to be resolved conclusively in favor o f the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a j u r y or judge to resolve the parties' d i f f e r i n g versions o f the truth at trial." First Nat. Bank o fAriz. v. Cities Svc. Co., 391 U.S. 253, 288-289 (1968). "[A] party seeking summary judgment always bears the initial responsibility o f informing the district court o f the basis for its motion, and identifying those portions o f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f any, which it b e l i e v e s d e m o n s t r a t e the a b s e n c e o f a g e n u i n e i s s u e o f material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation omitted). In the qualified immunity context, summary judgment is appropriate only "in the absence o f a genuine dispute as to the reasonableness of the officers' perceptions." Clem v. County o f Fairfax, 150 F. Supp. 2d 888, 894 (E.D. Va. 2001) (quoting Gooden v. Howard County, 954 F.2d 960, 965 (4th Cir. 1992)). There is a "clear principle" holding that "the qualified immunity doctrine's important purpose of saving officers from the burden and expense of litigation in appropriate circumstances does not trump the parties' right to have a fact-finder resolve disputed issues o f fact material to the doctrine's application." Clem, 150 F. Supp. 2d at 896. Both parties argue that there are no genuine issues o f material fact necessitating a trial on the issue o f liability. The Court will address each o f S a v a g e ' s claims in turn, a. Count I: Liability U n d e r § 1983 for Constitutional Violations U n d e r 42 U.S.C. § 1983, s t a t e and local law e n f o r c e m e n t o f f i c e r s who are s u e d in t h e i r individual capacities for d a m a g e s are entitled to qualified immunity. See Cromer v. Brown, 88 F.3d 1315, 1324 (4th Cir. 1996) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). I m m u n i t y is lost w h e n an official (1) violates a statutory or constitutional right o f the plaintiff, and (2) the right was clearly established at the time o f the acts complained o f such that an objectively reasonable official in that position would have known o f the right. See McVey v. Stacy, 157 F.3d 271, 276 (4th Cir. 1998). Savage alleges several s e p a r a t e bases for liability u n d e r § 1983: (1) that the arrest occurred in the h o m e w i t h o u t a warrant, consent, or exigent c i r c u m s t a n c e s (in violation o f the Fourth Amendment); (2) that the arrest was for a misdemeanor offense though it occurred outside the presence o f the officer (in violation o f the Fourth Amendment); and (3) that the arrest was w i t h o u t probable c a u s e (in violation o f the Fourth A m e n d m e n t ) , i. Warrantless arrest in the home Savage alleges that Sturdivant violated his rights by arresting him in his home in the absence o f a warrant or exigent circumstances. See, e.g., PL's Mot. for Summ. J. ^ 8. Under clearly established federal law, absent exigent circumstances, police officers may not make a warrantless, nonconsensual entry into a private dwelling in order to effectuate an arrest. Payton v. New York, 4 4 5 U.S. 5 7 3 , 5 9 0 ( 1 9 8 0 ) . According to Savage, Sturdivant entered Savage's bedroom at least once without obtaining Savage's consent. Savage Aff. 1| 8. Nonetheless, this Court finds that a genuine issue of material fact exists regarding the presence or absence o f exigent circumstances that would justify S a v a g e ' s warrantless arrest. Celotex requires that a party moving for summary judgment "identify [] those portions o f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f any, which it believes demonstrate the absence o f a genuine issue o f material fact." 477 U.S. at 323. Neither party here has sufficiently addressed whether exigent circumstances justified a warrantless intrusion. See Minnesota v. Olson, 495 U.S. 91, 100 (1990); Fletcher v. Town o f Clifton, 196 F.3d 41, 50 (1st Cir. 1999) (finding that officer enjoyed qualified immunity for warrantless entry where officer perceived danger to persons associated with domestic violence). The parties' motions for summary j u d g m e n t on this issue are therefore D E N I E D . ii. Misdemeanor arrest outside the presence o f the officer Savage also charges that his warrantless, misdemeanor arrest was illegal because the alleged crime took place outside o f the arresting officer's presence. This cannot serve as the basis for a § 1983 claim. "A section 1983 action . . . is not predicated on the legality or illegality of an act under state law, but on whether that act deprives an individual of'rights, privileges, or immunities secured by the [federal] Constitution and laws.'" Clipper v. Takoma Park, 876 F.2d 17, 19 (4th Cir. 1989) ( q u o t i n g 42 U.S.C. § 1983). As noted a b o v e , in o r d e r to o v e r c o m e an officer's qualified immunity, thefederal right alleged to have been violated must be clearly established at the time of the acts complained of such that an objectively reasonable official in that position would have known of the right. McVey, 157 F.3d at 276. The Supreme Court has not addressed the issue of whether the Fourth Amendment entails an "in the presence" requirement for purposes of misdemeanor arrests, see Atwater v. City ofLago Vista, 532 U.S. 318, 340 n.l 1 (2001), nor has the Fourth Circuit provided clear direction on the issue. See, e.g., United States v. McNeill, 4 8 4 F . 3 d 3 0 1 , 311 (4th Cir. 2007) ( " [ W ] e need not decide w h e t h e r the Fourth A m e n d m e n t c o n t a i n s an ' i n the p r e s e n c e ' requirement for warrantless m i s d e m e a n o r arrests . . . . " ) . It cannot be said that Sturdivant violated a clearly established federal right by arresting Savage. Therefore, this Court GRANTS Sturdivant's Motion for Summary Judgment as to S a v a g e ' s § 1983 c l a i m i n s o f a r as it rests upon these grounds, iii. Lack o f probable cause The issue o f probable cause is central to several claims in this case. With respect to Savage's § 1983 claim, the law is clear that if an officer effects an arrest in the absence o f probable cause, he violates the a r r e s t e e ' s Fourth Amendment right to be free from unreasonable s e i z u r e . United States v. Watson, 4 2 3 U . S . 4 1 1 , 4 1 7 ( 1 9 7 6 ) . P r o b a b l e c a u s e e x i s t s w h e n " f a c t s and circumstances within the o f f i c e r ' s knowledge . . . are sufficient to warrant a prudent person, or one o f reasonable c a u t i o n , in believing, in the circumstances s h o w n , that the suspect has committed, is committing, or is about to commit an offense." Wilson v. Kittoe, 337 F.3d 392, 398 (4th Cir. 2003) (quoting Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992)). In making its determination o f whether probable cause exists in a given case, the Court must consider only those "facts and circumstances known [to the officer] at the time o f the arrest." Smith v. Tolley, 960 F. Supp. 9 7 7 , 9 9 4 (E.D. Va. 1997). Under the standard for qualified immunity, the officer is immune from an § 1983 claim for arrest in the absence o f probable cause if: (1) probable cause existed (and hence no constitutional violation occurred); or (2) regardless o f whether probable c a u s e e x i s t e d , a r e a s o n a b l e o f f i c e r in t h e o f f i c e r ' s s h o e s " c o u l d h a v e b e l i e v e d t h a t he h a d probable cause to arrest." Sevigny v. Dicksey, 846 F.2d 953, 956 (4th Cir. 1988). Applying the law to the facts o f this case, this Court finds that genuine issues o f material fact exist regarding the probable cause and qualified immunity determination. More specifically, 8 material, disputed issues o f fact e x i s t as to the substance o f the c o n v e r s a t i o n s that occurred between Sturdivant and Savage in S a v a g e ' s bedroom. Sturdivant claims that Savage told him he was home at 2:30 p.m. Sturdivant justified his failure to pursue S a v a g e ' s proffered alibi evidence on these grounds. Savage, on the other hand, asserts that he never told Sturdivant he was home at 2:30 p.m. On the contrary, Savage claims to have spelled out in some detail his whereabouts from the previous 24 hours. According to Savage, he then placed exculpatory evidence in Sturdivant's hand, and offered contact information for persons who could confirm that Savage was not home at the time o f the alleged crime. Sturdivant refused to pursue these evidentiary leads, even when fellow officers requested that he allow them to do so. Savage also asserts that Sturdivant confessed that he had doubts about the authenticity o f C h y n a ' s story. Contingent upon its resolution o f these disputed facts, a reasonable fact-finder could properly determine that Sturdivant had neither probable cause to arrest Savage, nor a reasonable belief that probable cause existed. In reaching this conclusion, the Court is wary o f second-guessing the investigatory decisions o f an experienced police officer. Certainly the Court concurs that it cannot and should not "pursue all the steps a police officer might have taken that might have shaken [an officer's] belief in the existence o f probable cause." Torchinsky v. Siwinski, 942 F.2d 2 5 7 , 2 6 4 (4th Cir. 1991) (emphasis in original); see also Clipper, 876 F.2d at 20 (holding that officer's failure to investigate leads provided by arrestee was not, in itself, sufficient to negate probable cause). However, as the Fourth Circuit has made clear, a police officer may be liable under § 1983 where he fails to investigate "readily available exculpatory evidence." Torchinsky, 942 F.2d at 264; see also Clipper, 876 F.2d at 19 (upholding § 1983 verdict for arrestee where officers failed to contact persons identified by arrestee who would have confirmed arrestee's alibi); Wadkins v. Arnold, 214 F . 3 d 535, 541 ( 4 t h Cir. 2 0 0 0 ) (holding that an o f f i c e r " m a y not disregard readily available exculpatory evidence o f which he is aware"). Given disputes o f material fact, this Court cannot rule as a matter o f law on the reasonableness o f S t u r d i v a n t ' s probable cause determination, or on the existence o f probable cause itself. S u m m a r y j u d g m e n t disposition is, therefore, inappropriate. The parties' motions for summary judgment as to this issue are DENIED. b. Count II: False Arrest In Count II o f his Third A m e n d e d Complaint, Savage states a claim for false arrest. Under Virginia law, where a law enforcement officer acts in good faith and with probable cause, he c a n n o t be held liable for false arrest. Veney v. Ojeda, 321 F. Supp. 2d 7 3 3 , 7 4 7 (E.D. Va. 2 0 0 4 ) (citing DeChene v. Smallwood, 311 S . E . 2 d 749, 751 (1984)). " T o e s t a b l i s h the defense, an officer need not allege and prove probable cause in the constitutional sense. Instead, the officer must allege and prove (i) that he believed in good faith that the arrest was lawful and (ii) that his b e l i e f was r e a s o n a b l e . " Veney, 321 F. Supp. 2d at 747 (internal citations omitted). Like S a v a g e ' s § 1983 c l a i m for unreasonable seizure, this i s s u e turns on whether Sturdivant possessed a reasonable b e l i e f that probable cause to arrest Savage existed. In light o f the g e n u i n e disputes o f material fact set out in Section II(a)(iii), the C o u r t c a n n o t resolve this matter on summary disposition. The parties' motions for s u m m a r y j u d g m e n t are DENIED. c. C o u n t III: N e g l i g e n c e Savage claims that Sturdivant was negligent in conducting his investigation, and that this negligence resulted in d a m a g e to Savage. Third Am. Compl., C o u n t III; see also Third Am. Compl. H2 (alleging that Sturdivant's failure to investigate and document Savage's alibi was "gross negligence"). Under Virginia law, ordinary negligence claims cannot lie against a law 10 enforcement officer who was engaged in "an essential governmental function involving the exercise o f discretion and judgment" at the time of the act alleged to be negligent. See Glasco v. Ballard, 452 S.E.2d 854, 856 (Va. 1995). In determining whether defendants are entitled to this immunity, Virginia courts consider the following factors: "1) the nature o f the function performed by the employee; 2) the extent o f the s t a t e ' s interest and involvement in the function; 3) the degree o f control and direction exercised by the state over the employee; and 4) whether the act complained o f involved the use o f j u d g m e n t and discretion." Messina v. Burden, 321 S . E . 2 d 6 5 7 , 663 ( V a . 1 9 8 4 ) . Enforcement o f laws against sexual abuse are undeniably a function o f the Stafford County S h e r i f f s Office, and one with which the office is heavily involved. Sturdivant was performing this law enforcement function at the time o f the acts that Savage alleges were negligent. S t u r d i v a n t ' s r e s p o n s i b i l i t i e s in executing the function were not ministerial. Rather, they required him to make "prompt, original, and crucial decisions" in a delicate and stressful situation. See Colby v. Boyden, 400 S.E.2d 184, 187 (Va. 1991). Therefore, this Court is satisfied that Sturdivant qualifies for immunity under the applicable standard. Even though Sturdivant enjoys immunity from simple negligence claims, he is nonetheless liable for acts that rise to the level o f gross negligence. Id. Virginia Courts have used many formulations to define gross negligence: It is "that degree o f negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect o f the safety o f [another]." Green v. Ingram, 608 S.E.2d 917, 922 (Va. 2005). ' i t must be such a degree of negligence as would shock fair minded men although something less than willful recklessness." Ferguson v. Ferguson, 181 S.E.2d 648, 653 (Va. 1971). "It is a heedless and palpable violation of legal duty respecting the rights of others." Town o f Big Stone Gap v. 11 Johnson, 35 S.E.2d 71, 73 (Va. 1945). "Gross negligence amounts to the absence o f slight diligence, or the want o f e v e n scant care." Frazier v. City o fNorfolk, 362 S.E.2d 688, 691 (Va. 1987). The ultimate determination as to the existence or absence o f gross negligence could turn upon the fact-finder's resolution o f the aforementioned material facts in dispute. For this reason, summary disposition on this issue is inappropriate. The parties' motions for summary judgment as to the negligence count are DENIED. d. Count IV: Deprivation o f Due Process Savage claims t h a t by " c o n d u c t i n g an improper investigation by failing to document and investigate . . . readily available alibi evidence" Sturdivant violated S a v a g e ' s procedural and substantive due process rights. P L ' s Mot. for Summ. J. ^ 3. According to Savage, Sturdivant's " o m i s s i o n o f P l a i n t i f f s alibi in his narrative report deprived P l a i n t i f f o f his protected due process rights not to be arrested w i t h o u t p r o b a b l e c a u s e . " Third Am. Compl., C o u n t IV. The substantive right claimed by Savage does not exist. As both the Fourth Circuit and the Supreme Court have made clear, prosecution in the absence o f probable cause does not give rise to a due process claim. See Albright v. Oliver, 510 U.S. 2 6 6 , 2 6 8 (1995) ("Petitioner asks us to recognize a substantive right u n d e r the Due Process C l a u s e o f the Fourteenth A m e n d m e n t to be free from criminal prosecution except upon probable cause. We decline to do so."); Wilkes v. Young, 28 F.3d 1362, 1364 n.2 (4th Cir. 1994) ("[A]n individual alleging that he was prosecuted in the absence o f probable cause states no substantive due process claim."). 12 Savage's substantive federal c l a i m against Sturdivant is for Fourth A m e n d m e n t violations, not for due p r o c e s s violations. S t u r d i v a n t ' s Motion for S u m m a r y J u d g m e n t as to this count is GRANTED, and Savage's motion is DENIED.2 e. Count V: Malicious Prosecution In a malicious prosecution action, the plaintiff must prove that his prosecution was "(1) malicious; (2) instituted by, or with the cooperation of, the defendant; (3) without probable cause; and (4) terminated in a m a n n e r not unfavorable to the plaintiff." Hudson v. Lanier, 497 S . E . 2 d 4 7 1 , 4 7 3 (Va. 1998). M a l i c e , in this context, is defined as " a n y controlling motive o t h e r than a good faith desire to further the ends o f justice, enforce obedience to the criminal laws, suppress crime, or see that the guilty are punished." Id. The fact-finder may infer malice from the lack o f probable cause. Giant ofVa., Inc. v. Pigg, 152 S.E.2d 2 7 1 , 2 7 6 (Va. 1967); see also Lee v. Southland Corp., 244 S.E.2d 756, 759 (Va. 1978) (same). Savage can clearly satisfy the second and fourth Hudson elements. Whether Savage can satisfy the remaining two elements turns upon whether the arrest was made with or without probable cause. In light o f the genuine disputes o f material fact set out in Section II(a)(iii), the C o u r t c a n n o t resolve this m a t t e r on s u m m a r y disposition. T h e p a r t i e s ' m o t i o n s for s u m m a r y judgment are hereby DENIED as to this count. f. Count VI: N o n - M o n e t a r y R e l i e f Savage also asks this Court to expunge and seal his "criminal record in both the juvenile and domestic relations court as well as the circuit court to include any and all internal police To the e x t e n t that S a v a g e ' s due p r o c e s s c l a i m s rest upon his p e r i o d o f detention, or upon Sturdivant's alleged falsification o f evidence, or false testimony to the magistrate judge, this C o u r t has previously d i s m i s s e d t h o s e c l a i m s with prejudice. See J u n e 16, 2 0 1 0 O r d e r (Dkt. No. 68). 13 notes, comments, and papers on file." Third Am. Compl, C o u n t VI. The procedure for expunging police and court records in the Commonwealth o f Virginia is set out in Va. Code. § 19.2-392.2. Savage has informed the Court that he has not yet attempted to pursue this avenue o f redress. Count VI is, therefore, DISMISSED WITHOUT PREJUDICE. Savage is encouraged to return to the Court i f he is unable to achieve the relief he seeks through the means prescribed by s t a t e law. III. Conclusion In sum, Savage's Motion for Summary Judgment is DENIED in its entirety. Sturdivant's Motion for Summary Judgment is GRANTED with respect to Count IV: Deprivation o f Due Process and with respect to Savage's § 1983 claim for misdemeanor arrest outside the presence o f the officer. On all other issues, Sturdivant's Motion for Summary Judgment is DENIED. S a v a g e ' s request for non-monetary r e l i e f in Count VI is DISMISSED W I T H O U T PREJUDICE. November 16,2010 Alexandria, Virginia /s/ Li am O ' G r a d y iŁ United States District Judge 14

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