R.M.B. et al v. Bedford County (Virginia) School Board et al

Filing 91

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on March 11, 2016. (sfc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION

R.M.B., ET AL.,

CASE NO. 6:15–cv–00004
Plaintiffs,
v.

BEDFORD COUNTY (VIRGINIA) SCHOOL BOARD,
ET AL.,
Defendants.

MEMORANDUM OPINION

JUDGE NORMAN K. MOON

This matter is before the Court upon Defendants’ motion for summary judgment (docket
no. 53) and Plaintiffs’ cross-motion for summary judgment (docket no. 76).
Plaintiffs in this suit are R.M.B., an 11-year- old boy who was enrolled as a student at
Bedford Middle School (“BMS”) for the 2014–15 school year; his father, Robert Bays, a retired
schoolteacher; and his mother, Linda Bays, a schoolteacher employed by the Bedford County
School Board (“BCSB”). Defendants are Brian Wilson, an assistant principal at BMS; Dr.
Frederick M. Duis Jr., the Chief Operations Officer for

Bedford County Public Schools

(“BCPS”); and M. M. Calohan, a law enforcement officer employed as a deputy of the Bedford
County Sheriff, and who was assigned to BMS as a school resource officer.
Plaintiffs’ suit contains three claims: a Virginia state law claim of malicious prosecution;
a claim of deprivation of due process; and a claim of deprivation of substantive due process. For
the following reasons, I will grant Defendants’ motion for summary judgment, and deny
Plaintiffs’ motion for summary judgment.

I.

STANDARD OF REVIEW

Summary judgment is warranted if the Court concludes that no genuine issue of material
fact exists for trial and that the moving party is entitled to judgment as a matter of law, based on
the totality of the evidence, including pleadings, depositions, answers to interrogatories, and
affidavits. Whiteman v. Chesapeake Appalachia, L.L.C., 729 F.3d 381, 385 (4th Cir. 2013)
(citing Fed. R. Civ. P. 56). A genuine issue of material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). To demonstrate that a genuine issue of material fact exists, a party
may not rest upon his own mere allegations or denials. Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986). Rather, the party must “proffer[] sufficient proof, in the form of admissible evidence,
that could carry the burden of proof of his claim at trial.” Mitchell v. Data Gen. Corp., 12 F.3d
1310, 1316 (4th Cir. 1993). To this end, a district court has an “affirmative obligation . . . to
prevent ‘factually unsupported claims [or] defenses’ from proceeding to trial.” Felty v. GravesHumphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (quoting Celotex, 477 U.S. at 323–24).
II.
A.

UNDISPUTED FACTS

INITIAL REPORTS TO CALOHAN

Calohan received a report on September 19, 2014, from Christy Martin, a parent of a
student at BMS. Martin reported that R.M.B. “was telling people at school he was selling
brownies and cookies with marijuana [baked inside].” Docket No. 54, Ex. 1, at 6 (hereinafter
“Calohan Dec.”); see also Docket No. 77, Ex. 4, at 2:10–15 (“[M]y daughter had heard . . . about
a child bringing marijuana cookies in and offering it to students.”) (hereinafter “Martin Dep.”).
Calohan received a similar report the following Monday morning, September 22, 2014. A
female sixth grade student, identified as M.S., went to Calohan’s school office and told her that

-2-

R.M.B. “brought this leaf to school that he said was marijuana.” Docket No. 77, Ex. 6, at 20:10–
15 (hereinafter “M.S. Dep.”). M.S. also reported that R.M.B. had a lighter, rolled cigarette paper
into a cigarette and lit the end of it, and that he and a high school student were selling marijuana
on his bus. Calohan Dec. 6.
B. WILSON’S INVESTIGATION
Calohan relayed these reports to Wilson later that morning, and he retrieved R.M.B. from
class. Docket No. 54, Ex. 2, at 4 (hereinafter “Wilson Dec.”); Docket No. 77, Ex. 1, at 9:11–17
(hereinafter “R.M.B. Dep.”); Docket No. 77, Ex. 5, at 4:22–5:1 (hereinafter “Wilson Dep.”).
While walking to his office, Wilson asked R.M.B. if he had anything in his cinch sack that he
should not have, to which R.M.B. responded “No.” R.M.B. Dep. 10:5–6; Wilson Dep. 5:2–6.
Once in his office, Wilson decided to search R.M.B.’s cinch sack. Officer Calohan was
responding to a call at the elementary school at the time, and so Wilson called the school nurse
into his office to witness the search. Wilson Dec. 4; Wilson Dep. 5:1–2. Wilson and R.M.B.
emptied R.M.B.’s cinch sack, and Wilson discovered in the front pocket of the sack what
appeared to be a crumpled marijuana leaf and a lighter. R.M.B. Dep. 10:22–11:4; Wilson Dep.
5:6–10; see also Docket No. 54, Ex. 3, at 2–4 (hereinafter “Photo Ex.”).
Wilson asked R.M.B. how he came to possess the items, and R.M.B. told him that a high
school student, identified as J.T., gave him the leaf and the lighter. R.M.B. Dep. 12:3–4; Wilson
Dec. 4. R.M.B. stated that he did not purchase the leaf from J.T., but instead that it was given to
him to keep. Wilson Dec. 4.
C. CALOHAN’S INVESTIGATION AND R.M.B.’S CRIMINAL CHARGE
Wilson called Calohan into his office when she returned to school, and she examined
some of R.M.B.’s possessions. She observed that R.M.B. had a picture of a cannabis plant on the

-3-

welcome screen of his phone, which was overlaid with the text “F*** YOU.” Calohan Dec. 7;
Photo Ex. 4.
She also inspected the leaf. She “observed [the leaf] visually, noticed that it was five
leaves coming off an individual stem, each leaf being serrated on the edge which was consistent
with that of marijuana.” Calohan Dep. 15:11–14. She also “observed the odor of the leaf, which
[she] knew through [her] training to be the odor of marijuana, consistent with that of marijuana.”
Id. at 15:14–16. Based on her training and experience, she knew based on the size, shape, color,
and smell of the leaf that it was consistent with marijuana. Calohan Dec. 6.
Calohan placed a portion of the leaf in a Duquenois-Levine Reagent field test kit
(hereinafter “field test”). Calohan Dep. 3:21. Such field tests are used to detect the presence of
marijuana, hashish, THC, and hash oil. Calohan Dec. 6. The field test yielded a negative result,
meaning that the leaf did not indicate the presence of any of the above-named substances.
Calohan Dep. 15:24–16:1. Calohan conducted a second field test, which also yielded a negative
result. Id. at 17:8–11. Calohan conducted a third field test thirty minutes later, which also yielded
a negative result. Id. at 17:17–18:1.
“Concerned with the results of the test kit,” Calohan sought guidance from fellow officer
Chris Cook, another school resource officer. Cook did not, however, have any helpful advice.
Calohan Dep. 28:5–16.
Calohan subsequently contacted Gary Harper, an intake officer at the Juvenile and
Domestic Relations District Court. Calohan told Harper “everything,” including that she
identified the leaf as marijuana both visually and olfactorily, but that the three field tests yielded
negative results. Id. at 24:17–20. She asked for “further guidance on regarding what to do in
terms of seeking a petition.” Id. at 24:20–22.

-4-

Harper requested that Calohan come to his office. When she arrived, Harper looked over
all of the evidence that she provided, and he advised Calohan that he believed the information
sufficient to issue a petition. Id. at 24:24–25:4; Calohan Dec. 2. Harper thereafter issued an
intake petition accusing R.M.B. of possessing marijuana. Calohan Dep. 24:24–25:4.
The leaf was not sent to state forensics for further testing, however, and so the petition
was nolle prosequied on November 24, 2014. Docket No. 77, Ex. 11.
D. R.M.B.’S SUSPENSION AND ADMINISTRATIVE HEARING
Wilson contacted R.M.B.’s parents while Calohan was concluding her investigation.
Wilson told them he received reports indicating R.M.B. possessed marijuana, and that he found a
lighter and a leaf that appeared to be marijuana in R.M.B.’s cinch sack. Wilson Dec. 4. Wilson
suspended R.M.B. for ten days and recommended that he be expelled pursuant to Bedford
County’s “Zero Tolerance” policy. Id. at 4; Wilson Dep. 6:3–10.
Because Wilson recommended expulsion, R.M.B. had the right to participate in an
administrative hearing before an administrative hearing officer. Duis, who was appointed as an
administrative hearing officer by the superintendent of BCPS, oversaw R.M.B.’s hearing. Docket
No. 54, at 1 (hereinafter “Hr’g Tr.”). R.M.B. attended the hearing with his attorney, Emily
Sitzler, and both of his parents. Id. Wilson was also present at the hearing.
Wilson recounted the evidence against R.M.B. at the hearing. R.M.B.’s parents and his
attorney were allowed to ask questions of Wilson and to make arguments. For example, they
argued the reports indicating R.M.B. had marijuana were not credible and not specific to R.M.B.
Hr’g Tr. 14–15.
Moreover, R.M.B. was allowed to present his own narrative of events. R.M.B. claimed
that a student sitting next to him on the bus must have placed the lighter and the leaf in his cinch

-5-

pack without his knowledge. Id. at 11–12. This was contrary to R.M.B.’s original story, and he
was allowed to explain this inconsistency, stating that he lied to Wilson because he did not think
Wilson would believe the truth. Id. at 12–13.
After hearing the evidence and the arguments, Duis found on the record that R.M.B.
knowingly possessed either marijuana or a marijuana lookalike. Id. at 20. Duis nevertheless
reduced R.M.B.’s punishment from expulsion to suspension for 364 days, with the opportunity to
attend an alternative school while suspended and to return to BMS at the end of the first semester
if R.M.B. maintained good grades, had no disciplinary issues, and completed the County’s Drug
Intervention Program. Id. at 24.
III.

DISCUSSION

A. MALICIOUS PROSECUTION
Plaintiffs assert a claim of malicious prosecution against Calohan and Wilson. Because
“criminal prosecutions are essential for maintaining an orderly society,” “[m]alicious prosecution
actions arising from criminal proceedings are not favored in Virginia and the requirements for
maintaining such actions are more stringent than those applied to other tort cases.” O’Connor v.
Tice, 704 S.E.2d 572, 575 (Va. 2011).
To prevail on a malicious prosecution action, a plaintiff must prove by a preponderance
of the evidence that the prosecution was (1) malicious, (2) instituted by or with the cooperation
of the defendant or defendants, (3) without probable cause, and (4) terminated in a manner not
unfavorable to the plaintiff. Lewis v. Kei, 708 S.E.2d 884, 889 (Va. 2011); O’Connor, 704 S.E.2d
at 575.
1. Wilson Is Entitled to Summary Judgment

-6-

Plaintiffs do not dispute that Wilson is entitled to summary judgment, and for good
reason—no reasonable jury could find that R.M.B.’s prosecution was “instituted by or with the
cooperation of” Wilson.
Although there exists no one articulated rule defining when a criminal proceeding was
instituted by or with the cooperation of a defendant, see Bennett v. R&L Carriers Shared Servs.,
LLC, 744 F. Supp. 2d 494, 510 (E.D. Va. 2010), generally the defendant must have
“affirmatively, actively, and voluntarily took steps to instigate or to participate in the arrest of the
defendant, [or the] defendant [must have] exercised some level of control over the decision to
have the plaintiff arrested.” Id. at 511–12. Courts consider whether the defendant “ever urged
or . . . suggested to [an official] that he prosecute the plaintiff.” See Am. Ry. Express Co. v.
Stephens, 138 S.E. 496, 500–01 (Va. 1927).
There are no facts in the record from which a jury could find that Wilson urged Calohan
to seek a criminal intake petition against R.M.B. Likewise, there are no facts from which a jury
could find that Wilson “requested the initiation of proceedings, signed a complaint, or swore out
an arrest warrant against the plaintiff.” See Brice v. Nkaru, 220 F.3d 233, 239 (4th Cir. 2000).
Wilson merely reported to Calohan that he discovered a lighter and what appeared to be a
marijuana leaf in R.M.B.’s cinch sack. “[If a] defendant simply reported the occurrence of events
to the police . . . then that individual cannot be held liable for malicious prosecution so long as
the information provided was with an honest or good faith belief of the facts reported.” Bennett,
744 F. Supp. 2d at 512.
Accordingly, I will grant summary judgment in favor of Wilson on this claim.

2. Calohan Is Entitled to Summary Judgment

-7-

The parties dispute whether Calohan had probable cause to seek charges against R.M.B.
“[I]n the context of a malicious prosecution action, probable cause is defined as knowledge of
such facts and circumstances to raise the belief in a reasonable mind, acting on those facts and
circumstances, that the plaintiff is guilty of the crime of which he is suspected.” O’Connor, 704
S.E.2d at 576.
Calohan points to the following facts as establishing probable cause to charge R.M.B.
with possession of marijuana:1 (1) the reports she received from Martin and from M.S., both of
which indicated that R.M.B. possessed marijuana; (2) the fact that the leaf was found with a
lighter; (3) the fact that the leaf was found in addition to a cell phone which displayed a picture
of a marijuana leaf; (4) R.M.B.’s statements to Wilson that he was given the leaf and lighter by a
high school student to keep; and (5) her positive identification of the leaf as marijuana based on
the visual characteristics and odor of the leaf.
Where, as here, there are no material disputes of fact, “the court determines as a matter of
law whether [the facts] amount to probable cause.” Caldwell v. Green, 451 F. Supp. 2d 811, 818
(W.D. Va. 2006); see also Clarke v. Montgomery Ward & Co., 298 F.2d 346, 348 (4th Cir. 1962)
(“[I]t is a settled rule that in a suit for malicious prosecution, what constitutes probable cause is a
question of law for the judge to decide.”); Thomas v. Lamanque, 986 F. Supp. 336, 339 (W.D.
Va. 1997) (“Whether probable cause exists is a matter for the courts unless there is a conflict in
the evidence, in which situation probable cause becomes a matter for a jury.”)

1

Defendants argue that because Calohan disclosed all of the evidence to Harper, a neutral intermediary, she is
shielded from that intermediary’s incorrect determination that probable cause existed. Defendants rely on Evans v.
Chalmers, 703 F.3d 636, 647–48 (4th Cir. 2012) and Chipouras v. AJ&L Corp., 290 S.E.2d 859, 861 (Va. 1961), for
this proposition. Defendants’ reliance on Evans and Chipouras is, however, misplaced. Evans and Chipouras held
that an officer is shielded when they disclose evidence to counsel, who then subsequently makes an incorrect
determination that probable cause exists. Here, Calohan disclosed evidence to Harper, a fellow police officer, rather
than counsel. Accordingly, Calohan is not shielded from liability on this basis.

-8-

Plaintiffs argue that any probable cause Calohan may have had was vitiated when she
performed three field tests, all of which yielded negative results. No Court has held that negative
field tests vitiate probable cause as a matter of law. See, e.g., People v. Rayford, 725 P.2d 1142,
1146–57 (Colo. 1986) (holding that probable cause can exist despite a negative field test if
sufficient other factors were present); cf. Berg v. State, 384 So. 2d 292, 293–94 (Fla. Dist. Ct.
App. 1980) (“[A]ny probable cause which [the officer] might have had [that the substance was
illicit] was surely diminished as a result of three or four negative field tests conducted with three
different test kits.”).
Although the three field tests yielded negative results, “a law enforcement officer does
not have to conduct a chemical field test of the contraband or establish proof positive that a leafy
green plant substance is in fact marijuana.” Richardson v. State, 622 S.W.2d 852, 857 (Tex.
Crim. App. 1981). Indeed, Reagent field tests can be “unreliable when used on plants that are
recently cut or still growing—the test is designed for plants that have been dried or cured over
extended periods of time.” Waltman v. Payne, 535 F.3d 342, 347 (5th Cir. 2008).2
There are sufficient other factors present to support probable cause on these facts. A leafy
green substance with the size, shape, color, and smell of marijuana was found with a lighter and
in the possession of an individual reported to possess marijuana and who admitted to receiving

2

It is worth noting that two independent experts hired by the Defendants and Plaintiffs positively identified with
certainty the leaf in question as marijuana. Whether an officer had probable cause turns, of course, upon whether the
officer had probable cause based on the facts and circumstances available to him at the time of the determination,
see Beck v. Ohio, 379 U.S. 89, 91 (1964), and so this after-the-fact determination is not relevant to the probable
cause analysis. Nevertheless, it illustrates why Plaintiffs’ desired per se rule (that negative field tests always vitiate
probable cause) is untenable. The rule would authorize malicious prosecution actions in cases, like ours, where the
plaintiff actually possessed a controlled substance, but the field test yielded a negative result. The better rule is that
while a negative field test is one factor to consider, where sufficient other factors are present, a negative field test
does not necessarily vitiate probable cause. Accord Rayford, 725 P.2d at 1146. This rule is consistent with the
Supreme Court’s recent discussion of probable cause in Florida v. Harris, 133 S. Ct. 1050 (2013) (“The test for
probable cause is not reducible to ‘precise definition or quantification,’” Harris, 133 S. Ct. at 1055 (quoting
Maryland v. Pringle, 540 U.S. 366, 371 (2003), and instead requires only a “‘fair probability’ on which ‘reasonable
and prudent [people], not legal technicians, act.’” Harris, 133 S. Ct. at 1055 (quoting Illinois v. Gates, 462 U.S. 213,
235 (1983)).

-9-

the leaf and lighter to keep. These facts are enough to raise the belief in a reasonable mind that
the leaf is marijuana, the negative field tests notwithstanding.
Accordingly, I will grant summary judgment in favor of Calohan on this claim.
B. PROCEDURAL DUE PROCESS
Plaintiffs allege that Wilson and Duis violated R.M.B.’s procedural due process rights
because, inter alia, they failed to disclose “exculpatory evidence”3 and because they did not
provide a procedural mechanism by which R.M.B. could call witnesses at his hearing. R.M.B.
was, however, provided with notice of the charges against him and received a robust and full
hearing. This was sufficient process.
Students facing suspensions from school that are ten days or less “must be given some
kind of notice and afforded some kind of hearing.” Goss v. Lopez, 419 U.S. 565, 579 (1975). The
Supreme Court has not established what process is required for students facing “[l]onger
suspensions or expulsions for the remainder of the school term, or permanently,” stating in dicta
only that such suspensions “may require more formal procedures.” Goss, 419 U.S. at 584; see
also J.S. ex rel. Duck v. Isle of Wight Cty. Sch. Bd., 362 F. Supp. 2d 675, 681 (E.D. Va. 2005)

3

Plaintiffs claim that Calohan’s three negative field tests exculpate R.M.B. R.M.B. could, however, have been
suspended or expelled under Bedford school policy for possessing marijuana, or a marijuana lookalike. And indeed,
whether the substance R.M.B. possessed was actually marijuana was not the dispositive, or even central, issue at his
hearing. Moreover, all parties at the hearing acknowledged that R.M.B. could be suspended or expelled for
possessing imitation marijuana. See Hr’g Tr. 4 (“MR. WILSON: . . . [P]er our county policy, if it was held and it
was treated as marijuana, we treat it the same as if it is marijuana. So if he was representing it as marijuana to other
people, it’s the same per Bedford County policy as if it, you know, either way.”); Id. at 17–18 (“MS.
SITZLER: . . . [I]f he were saying, ‘Hey look, I have this leaf,’ . . . I recognize that that would be a violation of the
code of student conduct . . . .”); Id. at 19 (“MRS. BAYS: So again, I don’t want anyone to feel that we do not
understand that the lighter would get him suspended or that the pretense of marijuana would get him suspended.”);
Id. at 20 (“DR. DUIS: . . . I think it’s clear that [R.M.B.] possessed marijuana or a look alike very close to it at
school.”).

- 10 -

(“There is no Supreme Court case dealing with the due process rights of students facing longterm suspensions or expulsion . . . .”). Neither has the Fourth Circuit addressed this issue.4
Other circuits have said that students facing long-term suspensions must be given notice
and a meaningful opportunity to be heard. See, e.g., Remer v. Burlington Area Sch. Dist., 286
F.3d 1007, 1010–11 (7th Cir. 2002) (“[E]xpulsion procedures must provide the student with a
meaningful opportunity to be heard . . . As long as the student is given notice of the charges
against him, notice of the time of the hearing and a full opportunity to be heard, the expulsion
procedures do not offend due process requirements.”) (internal quotation marks and citations
omitted). Accordingly, R.M.B. was entitled to notice of the charges against him and a
meaningful opportunity to be heard.
Wilson and Duis satisfied this standard.5 Wilson provided R.M.B. and his parents
sufficient notice of the charges against R.M.B. Wilson called R.M.B.’s parents to the school, and
when they arrived, he “informed them of what had been discovered [in R.M.B.’s cinch sack] and
what [R.M.B.’s] statement was.” Wilson Dec. 4. Moreover, Wilson “went over the county police
[and] procedure as it applied to consequences for possession of marijuana.” Id. He further “gave
[R.M.B.’s parents] a copy of the ten day suspension letter and reviewed information about the
discipline hearing process.” Id.
4

For this reason alone, Wilson and Duis would be entitled to qualified immunity because the right to exculpatory
evidence and the right to call witnesses in an expulsion proceeding was not clearly established. See Danser v.
Stansberry, 772 F.3d 340, 346 (4th Cir. 2014) (internal citation omitted).
5

Although Plaintiffs claim that Wilson and Duis violated R.M.B.’s procedural due process rights because they failed
to disclose exculpatory evidence (the negative field tests) and because they did not provide a procedural mechanism
by which R.M.B. could call witnesses, neither the Supreme Court nor the Fourth Circuit have held that such formal
mechanisms are required in an academic, non-criminal context. Indeed, in an unpublished case, the Fourth Circuit,
considering counsel’s argument “that a trial-like proceeding, with the attendant right to call and cross-examine
witnesses, should have been afforded,” ultimately “f[oun]d no basis in law . . . for importing such a requirement into
the academic context.” Butler v. Rector & Bd. of Visitors of Coll. of William & Mary, No. 03–2119, 2005 WL
289974, at *4 (4th Cir. Feb. 8, 2005) (unpublished) (student expelled from graduate school was given substantial
process where she was “informed . . . of the most serious charges and complaints against her and provided . . . with
an opportunity to respond.”). At any rate, no such rights were clearly established at the time Wilson and Duis acted,
and so they would be entitled to qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

- 11 -

R.M.B. also was provided with a full hearing and a meaningful opportunity to be heard.
R.M.B. attended the hearing with his parents and his attorney, Emily Sitzler. See Hr’g Tr. 1. At
the hearing, Wilson provided the parties with a Discipline Packet, which contained a summary of
the incident, R.M.B.’s grades, and a statement of the events that happened on Monday,
September 22. Id. Wilson also provided an oral summary of the inculpatory evidence and
answered questions from R.M.B.’s parents and his attorney throughout the hearing. While
Wilson did not disclose with precision that Calohan conducted three field tests that yielded
negative results, he did disclose that a field test was conducted but it did not “show a reaction.”
Id.
R.M.B.’s attorney and parents were permitted to question Wilson about the school’s
inculpatory evidence. For example, Sitzler established through her questioning that Calohan
conducted a field test which did not react, and that she was only able to identify the leaf as
marijuana visually and by odor.6 Moreover, both R.M.B.’s attorney and parents were permitted
to, and in fact did, make arguments based on the fact that the field test did not react.7 R.M.B.’s
parents and attorney were also able to question Wilson about the witnesses who reported
R.M.B.’s conduct, suggesting that they were either not credible or that their reports were not
specific to R.M.B.8

6

See Hr’g Tr. 3 (“MS. SITZLER: So it was just a visual [identification].”).

7

See, e.g., Hr’g Tr. 8–9 (“MR. BAYS: . . . There’s not a lot of facts here. The marijuana leaf that was found cannot
even be verified as being marijuana technically from what I’m hearing.”); Id. (“MR. BAYS: He said that there was
nothing that showed upon the test. MRS. BAYS: The field test did not react.”); Id. at 17–18 (“MS.
SITZLER: . . . [W]e’ve got these rumors and suppositions and yes, a leaf was found, but it was a leaf that apparently
maybe didn’t meet the field test.”).
8

See, e.g., Hr’g Tr. 8 (“MR. BAYS: That’s what really concerns me is the rumors and this being based essentially
on rumor . . . My concern is that he was set up and they looked at him as somebody they could pass this off
on . . . .”); Id. at 11 (“MR. BAYS: If you can believe a student that tells that another student has drugs, why can’t
you just as equally believe a student who says that he didn’t know it was in his book bag and someone had put it
there?”); Id. at 17 (“MR. BAYS: His right to an education is being jeopardized because of rumors.”).

- 12 -

R.M.B. was also given a full and meaningful opportunity to tell his side of the story.
R.M.B. claimed at the hearing that another student, identified as J.T., must have put the
substance in his cinch pack on the bus when he was not paying attention. Hr’g Tr. 11–13. This
story was inconsistent with R.M.B.’s previous statement to Wilson that a student had given him
the leaf and lighter to keep. R.M.B. was allowed to explain the inconsistency, stating that he lied
to Wilson because he thought Wilson would find his initial story more believable. Id. at 12–13.
Finally, Duis made on the record his finding that based on “all things being presented and
are here today . . . I think it’s clear that [R.M.B.] possessed marijuana or a look alike very close
to it at school . . . Based on statements I heard from [R.M.B.] today that the search took place, it
seems to me he knew it was there because he told [Wilson] about how he got it.” Hr’g Tr. 20.
In short, R.M.B. was provided with notice of the charges and received a robust and full
hearing at which he was able to tell his side of the story with the assistance of his parents and his
attorney. This satisfied the requirements of due process. Wilson and Duis are accordingly
entitled to summary judgment in their favor.
C. SUBSTANTIVE DUE PROCESS
Plaintiffs claim that R.M.B. has a liberty interest to be free from criminal prosecution
except when police and prosecutors have probable cause. Plaintiffs allege that Calohan and
Wilson violated that right because they “pursued criminal prosecution of R.M.B. with the full
knowledge that R.M.B. did not commit the alleged offense, i.e., possession of marijuana.” Pls.’
Compl. ¶ 71.
While the Fourteenth Amendment’s due process clause does “guarantee[] more than fair
process,” Washington v. Glucksberg, 521 U.S. 702, 719 (1997), neither the Supreme Court nor
the Fourth Circuit recognize a liberty interest to be free from criminal prosecution except upon

- 13 -

probable cause. See Albright v. Oliver, 510 U.S. 266, 274–75 (1994) (the substantive due process
clause does not provide a substantive right “to be free from criminal prosecution except under
probable cause.”); Taylor v. Waters, 81 F.3d 429, 436 (4th Cir. 1996) (“[N]o substantive due
process right against prosecution on less than probable cause exists under the Fourteenth
Amendment—at least where there is no quantum of harm occurring between the initiation of
groundless charges and the seizure.”). Indeed, Plaintiffs concede, in their memorandum in
opposition, that their substantive due process claim fails. See Docket No. 81, at 2
(“[C]onsequently, except as to substantive due process Defendants’ Motion for Summary
Judgment must be denied.”).
Accordingly, I will grant summary judgment in favor of Calohan and Wilson.
IV.

CONCLUSION

For the aforementioned reasons, Defendants’ motion for summary judgment will be
granted. Plaintiffs’ cross-motion for summary judgment will be denied. An appropriate order will
accompany this memorandum opinion.
The Clerk of the Court is hereby directed to send a certified copy of this memorandum
opinion and the accompanying order to all counsel of record.
11th
Entered this ________ day of March, 2016.

- 14 -