Bryant et al v. Oaks et al

Filing 32

OPINION AND ORDER granting 22 MOTION for Summary Judgment by Carl W. Carrico, R. D. Oaks. Signed by Judge James P. Jones on 12/19/2014. (lml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
DANNY BRYANT, ET AL.,
Plaintiffs,
v.
R.D. OAKS, SHERIFF OF WISE
COUNTY, VIRGINIA, IN HIS
INDIVIDUAL CAPACITY, ET AL.,
Defendants.

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Case No. 2:13CV00022
OPINION AND ORDER
By: James P. Jones
United States District Judge

Michael A. Bragg, Bragg Law, Abingdon, Virginia, for Plaintiffs; Henry S.
Keuling-Stout, Keuling-Stout, P.C., Big Stone Gap, Virginia, for Defendants.
In this § 1983 civil action against a deputy sheriff and his supervisor
asserting a claim of malicious prosecution, the defendants have moved for
summary judgment. Because it is undisputed that separate grand juries found
probable cause to believe that a criminal offense had been committed, and the
plaintiffs have presented no evidence that the deputy sheriff misled the prosecutors
or the grand juries, I find that any alleged wrongful conduct by the deputy sheriff
was insulated by the subsequent events as a matter of law. Additionally, I find that
the plaintiffs have not made a sufficient showing under Rule 56 as to their
supervisory liability claim.
defendants.

Therefore, I will enter judgment in favor of the

I.
Danny Bryant and Rockyfork Mine Electronics, Inc. (“Rockyfork”), a
corporation owned by Bryant’s wife, filed this action under 42 U.S.C. § 1983,
seeking damages against R.D. Oakes, the Sheriff of Wise County, Virginia, and his
former deputy sheriff, Carl W. Carico, 1 alleging a violation of the plaintiffs’ Fourth
Amendment rights. Following discovery, the defendants filed a joint Motion for
Summary Judgment.

The motion has been briefed and orally argued and is ripe

for decision.
Viewing the facts contained in the summary judgment record in a light most
favorable to the plaintiffs, reveals as follows. On July 30, 2004, in the course of
his duties, Deputy Sheriff Carico questioned an employee of Falcon Coal
Company, Douglas Collins, after Collins had been caught attempting to steal coal
mining equipment from his employer. Based upon Carico’s suspicions that the
plaintiff Danny Bryant had been purchasing stolen mining equipment, Collins
agreed to attempt a sale of mining equipment, including what is referred to as a
“bridge and firing package,”2 to Bryant as part of a sting operation. However, the
equipment was not actually stolen, but rather borrowed from Falcon Coal for
1

The plaintiffs misspelled both defendants’ last names in their Complaint.
Defendant Carico is referred to in the Complaint as “Carrico” but it appears from the
record that his name is spelled “Carico.” The sheriff is named Oakes and not “Oaks.”
2

This equipment helps control an underground mining machine. (Bryant Dep.
22, ECF No. 28-25.)
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purposes of the sting operation. Bryant paid a total of $2,500 for the equipment,
which included a $1,500 payment at the time of the transaction and $1,000 credit
for money Collins owed Bryant.

Collins wore a wire, which recorded the

transaction. The recording of the transaction was apparently misplaced and later
found, and the parties vigorously dispute both the authenticity of the recording and
the circumstances surrounding the transaction.
Based on these events, on August 19, 2004, Deputy Sheriff Carico submitted
sworn criminal complaints to a state magistrate, who issued arrest warrants against
Bryant for multiple charges. These charges included conspiracy to commit grand
larceny, conspiracy to commit money laundering and money laundering,
conspiracy to buy and receive stolen property, and two counts of buying and
receiving stolen property. The sworn criminal complaints that supplied probable
cause for each of these charges were essentially identical. In relevant part, the
complaints recited that Bryant had previously made arrangements with Collins to
purchase mining equipment,3 and that these transactions were consummated on
July 30, 2004. The complaints then alleged that “Mr. Bryant acknowledge[d]
during the purchases that he kn[ew] the property [wa]s stolen and t[old] Mr.

3

All of the criminal complaints except for one stated that Bryant had agreed on
June 30, 2004 to purchase a bridge and a firing package for a total of $2500, but one of
the complaints stated that the agreement was on July 1, 2004, to purchase two bridges
and a firing package for $3300.
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Collins if anyone ask[ed] about it, to deny any knowledge.” (See, e.g., Mem.
Opp’n Mot. Summ. J. Ex. 7, ECF No. 29-7.) The complaints stated that upon
questioning by Carico and another officer after making the purchases, Bryant
denied any knowledge of the equipment. He eventually relented, however, and
admitted purchasing the equipment. The property was then returned to its owner,
Falcon Coal. Nowhere did the complaints specifically recite that the property at
issue was not actually stolen, but borrowed from Falcon Coal.
On September 13, 2004, a civil forfeiture proceeding was initiated based on
the same allegations, supported by a sworn information signed by Carico.
Subsequently, Carico served a seizure warrant on Bryant and Rockyfork, and
seized Rockyfork’s entire inventory of electronic mining equipment, which the
plaintiffs claim was valued at hundreds of thousands of dollars. The equipment
was placed in a locked construction trailer by Sheriff Oakes.
On December 3, 2004, the state prosecutor obtained an indictment on
identical charges as the arrest warrants. Carico acknowledges that he was the lead
investigator at the time and that it would have been customary for him to appear
before the grand jury, but he asserts that he does not remember whether he actually
testified or not. No other evidence has been presented regarding the substance of
the grand jury proceedings.

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After the indictment was issued, the case apparently descended into a deep
freeze. No action was taken regarding either the indictment or the civil forfeiture
by either the prosecutor or Bryant’s defense attorney for several years, during
which time there was, for various reasons, turnover within the prosecutor’s office
and Sheriff Oakes’ office. On April 20, 2009, a different prosecutor obtained a
new indictment that was identical to the previous indictment, but with two
additional charges based on Bryant’s alleged “attempt” to receive stolen property.
By that time, Carico was no longer employed by Sheriff Oakes, and he did not
testify before the grand jury.
Bryant waived a jury and a bench trial was conducted on March 26, 2010.
Thereafter, on August 11, 2011, an order was entered by the court dismissing all
charges. Although no opinion was issued by the state judge and the transcript of
the court proceedings is not in the record, the parties agree that the court based its
decision on the fact that the heart of the case — the sting operation against Bryant
— involved conduct that was not then illegal under Virginia law. At that time, in
2004, the Virginia criminal statute governing receipt of stolen goods stated the
following:
If any person buy or receive from another person, or aid in concealing,
any stolen goods or other thing, knowing the same to have been
stolen, he shall be deemed guilty of larceny thereof.

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Va. Code Ann. § 18.2-108 (emphasis added). In other words, the statutory text
unambiguously required as an element of the crime that the property in question be
stolen; it did not criminalize receipt of property thought to be stolen but not
actually stolen, such as in the sting operation at hand.

See Gilland v.

Commonwealth, 35 S.E.2d 130, 131 (Va. 1945) (stating that conviction under
§ 18.2-108 required proof ‘“[t]hat “the goods or other things” were previously
stolen by some other person’” (citation omitted)); 66 Am. Jur. 2d, Receiving Stolen
Property § 7 (“An essential element of the offense of receiving stolen property is
that the property received must be stolen property.”).
This plain statutory meaning was further reinforced in 2008, prior to the
second indictment in this case, when the Virginia legislature amended § 18.2-108,
adding the following language plainly meant to address law enforcement
operations such as that involved in this case:
If any person buys or receives any goods or other thing, used in the
course of a criminal investigation by law enforcement that such
person believes to have been stolen, he shall be deemed guilty of
larceny thereof.
§ 18.2-108(B), amended by 2008 Va. Acts ch. 578 (emphasis added).

In short,

while Bryant’s alleged conduct would have been considered criminal under the
current version of the statute, the facts as alleged by Carico — even if proven
entirely true — would not have been punishable under the statute as it existed in
2004.
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On March 12, 2012, the related civil forfeiture action against Rockyfork’s
property was dismissed, and the property was released. Bryant claims that the
value of the property severely deteriorated due to the storage conditions, and that it
was worth a fraction of its value at the time it was seized in 2004.
The plaintiffs contend that Carico violated their constitutional rights by
intentionally misrepresenting to the magistrate that the property Bryant purchased
in July 2004 was stolen when he in fact knew that it was not stolen, in order to
furnish probable cause for Bryant’s arrest and the civil forfeiture of Rockyfork’s
inventory. The plaintiffs also assert that Sheriff Oakes failed to provide training or
oversight to Carico regarding the investigation of complex financial crimes and the
rights of the accused, including the preservation of evidence.
II.
Summary judgment is appropriate “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). “[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party. If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50 (1986) (citations omitted).

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The doctrine of qualified immunity, where applicable, acts as an absolute bar
to suits against government officials under § 1983. See Mitchell v. Forsyth, 472
U.S. 511, 526 (1985) (explaining that qualified immunity is “an immunity from suit
rather than a mere defense to liability”). Police officers are entitled to qualified
immunity so long as their conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine involves a two-step inquiry,
which asks “first whether a constitutional violation occurred and second whether
the right violated was clearly established.” Henry v. Purnell, 652 F.3d 524, 531
(4th Cir. 2011) (internal quotation marks and citations omitted).
Here, the plaintiffs assert a malicious prosecution claim under § 1983, which
“is properly understood as a Fourth Amendment claim for unreasonable seizure
which incorporates certain elements of the common law tort.”

Lambert v.

Williams, 223 F.3d 257, 261 (4th Cir. 2000). To prove such a claim, the plaintiffs
must show that the defendants “(1) caused (2) a seizure of the plaintiff pursuant to
legal process unsupported by probable cause, and (3) criminal proceedings
terminated in plaintiff’s favor.” Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir.
2012). As these elements make clear, “constitutional torts, like their common law
brethren, require a demonstration of both but-for and proximate causation.” Id.
Therefore, “subsequent acts of independent decision-makers (e.g., prosecutors,
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grand juries, and judges) may constitute intervening superseding causes that break
the causal chain between a defendant-officer’s misconduct and a plaintiff’s
unlawful seizure.” Id. These intervening causal acts insulate the police officer
from liability. Id.
Based on the undisputed facts, I must conclude that although the plaintiffs
have raised genuine issues of material fact as to the second and third elements of
their malicious prosecution claim, there are not sufficient factual issues as to the
element of causation to defeat summary judgment. Undoubtedly, a reasonable jury
could conclude, based on the evidence in the record, that Deputy Sheriff Carico
intentionally misled the state magistrate in order to obtain a warrant for an arrest
that otherwise lacked probable cause. The affidavits submitted by Carico to the
magistrate in 2004 unequivocally alleged that Bryant purchased property that he
knew to be stolen, while omitting the crucial fact that the property itself was not
actually stolen but rather borrowed by law enforcement. The affidavits thus left
the misimpression that the property purchased by Bryant was stolen when it was
actually not.

As explained above, this distinction was material — indeed,

dispositive — under the Virginia statute governing receipt of stolen property,
which only criminalized receipt of property that was actually stolen at the time of
the transaction in question. Moreover, the proceedings in question terminated in
the plaintiffs’ favor, with an acquittal on all charges following a bench trial.
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Unfortunately for the plaintiffs, these facts are not in themselves sufficient to
prove a malicious prosecution claim, given that grand juries on two separate
occasions returned indictments against the plaintiffs. “It has long since been
settled by the Supreme Court that ‘an indictment, “fair upon its face,” returned by a
“properly constituted grand jury,” conclusively determines the existence of
probable cause.’” Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012) (quoting
Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975)). Therefore, the subsequent acts
of prosecutors in convening the grand juries, and the grand juries’ decisions to
indict, “constitute[d] intervening superseding causes that br[oke] the causal chain”
between the officer’s alleged misconduct and the plaintiffs’ wrongful prosecution
and civil forfeiture. Evans, 703 F.3d at 647.
Of course, the general rule that subsequent indictments insulate police
officers from liability is not without exception, and only applies “in the absence of
evidence that [the officer] misled or pressured the prosecution.”

Id. at 648

(internal quotation marks and citations omitted). Officers may still be liable for
malicious prosecution where there is evidence that they “have lied to or misled the
prosecutor, failed to disclose exculpatory evidence to the prosecutor; or unduly
pressured the prosecutor to seek the indictment.” Id. at 647-48 (citations omitted);
see also Snider v. Lee, 584 F.3d 193, 206 (4th Cir. 2009) (Stamp, J., concurring)
(noting that officer who presents probable cause evidence to independent
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intermediary is not liable for malicious prosecution “unless the officer concealed or
misrepresented facts or brought such undue pressure to bear on the intermediary
that the intermediary’s independent judgment was overborne”).
Here, the plaintiffs have simply presented no evidence that Deputy Sheriff
Carico misled the prosecutors or the grand juries.

Rather, any inference of

causation between the officer’s actions and the ultimate issuance of either
indictment would be entirely a product of speculation. In Evans, the Fourth Circuit
firmly rejected such an approach to causation in the absence of evidence that the
officer affirmatively misled or pressured the prosecutor — even where it might be
“reasonabl[y] foreseeab[le]” that an indictment would follow from an officer’s
alleged misconduct. 703 F.3d at 649 n.5; see also Prosser & Keeton, The Law of
Torts § 41, at 269 (5th ed. 1984) (noting that “mere possibility” of causation based
on “pure speculation and conjecture” is insufficient to establish causation element
of tort).
The plaintiffs have the burden of producing evidence on every element of
their § 1983 claim. Because they have failed to present any evidence that Carico
misled the prosecutors or the grand juries that found probable cause against the
plaintiffs, there is not a genuine issue of material fact as to the causation element of
their claim. Therefore, defendant Carico is entitled to summary judgment on the
plaintiffs’ malicious prosecution claim.
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III.
The plaintiffs also contend that Sheriff Oakes is liable for Carico’s alleged
wrongful acts, due to Oakes failure to provide training or oversight in the
investigation of complex financial crimes and the preservation of evidence and
property seized. (Compl. ¶¶ 15, 20.)
Even if I were to determine that Carico could be liable for violating the
plaintiffs’ constitutional rights, I would find Sheriff Oakes not liable under a theory
of supervisory liability. In order to be liable for a subordinate’s unconstitutional
conduct under § 1983, the supervisory officer must (1) have had actual or
constructive knowledge that his subordinate’s conduct posed a pervasive and
unreasonable risk of constitutional injury; (2) have responded so inadequately as to
show deliberate indifference or tacit authorization; and (3) there was a causal link
between the supervisor’s inaction and the plaintiff’s constitutional injury. Shaw v.
Stroud, 13 F.3d 791, 798 (4th Cir. 1994).

“Establishing a ‘pervasive’ and

‘unreasonable’ risk of harm requires evidence that the conduct is widespread.” Id.
at 799 (citation omitted). Further, “deliberate indifference” requires a showing of
the supervisor’s “continued inaction in the face of documented widespread
abuses,” which ordinarily entails more than “pointing to a single incident or
isolated incidents.” Id. (internal quotation marks and citations omitted). Finally,
“the allegations must be sufficient to demonstrate a plausible nexus or affirmative
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link between the supervisor’s actions and the constitutional deprivation.” Jackson
v. Brickey, 771 F. Supp. 2d 593, 603 (W.D. Va. 2011).
The plaintiffs’ claim against Sheriff Oakes, which amounts to his alleged
failure to train and supervise Carico in Bryant’s case, meet none of these elements.
Most problematically, the plaintiffs’ case is based on a single incident. They have
not presented any evidence that Deputy Sheriff Carico’s conduct was “widespread”
as opposed to an isolated incident; much less that Sheriff Oakes took “continued
inaction” in the face of any pervasive misconduct. Further, given the finding of
probable cause by two separate grand juries, the plaintiffs fail to demonstrate a
causal link between Sheriff Oakes’ actions and any deprivation of the plaintiffs’
constitutional rights. Without more, the plaintiffs have failed to assert a § 1983
claim against Sheriff Oakes sufficient to defeat summary judgment.
IV.
For these reasons, it is ORDERED that the defendants’ Motion for
Summary Judgment (ECF No. 22) is GRANTED. A separate final judgment will
be entered in favor of the defendants and the case will be closed.

ENTER: December 19, 2014
/s/ James P. Jones
United States District Judge

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