JOE L. WEBSTER, District Judge.
This matter comes before the Court upon Plaintiff James Odis Sowell Jr.'s and Defendant Joshua Walsh's motions for summary judgment. (Docket Entries 16, 18.) For the following reasons, the Court recommends that Defendant's motion for summary judgment be granted and Plaintiff's motion for summary judgment be denied.
Plaintiff, a prisoner of the State of North Carolina, filed this action pursuant to 42 U.S.C. § 1983 on September 15, 2015. (Compl., Docket Entry 2.) Plaintiff alleges that on August 20, 2013, Defendant obtained a warrant for the arrest of Plaintiff. (Id. at 3.) Plaintiff further asserts that on August 22, 2013, he was arrested and charged for a crime he did not commit. (Id.) According to the police report, the suspect attempted to rob the victim with an object in a grocery store parking lot. (Pl.'s Summ. J. Mot. at 6, Docket Entry 16-2.) Plaintiff contends that the physical description given by the victim of the suspect did not match him. (Compl. at 3, Docket Entry 2.) Plaintiff further states that the color of his vehicle did not match the description of the vehicle that the suspect used to flee the scene of the crime. (Id.) Plaintiff also asserts that he was not driving because his driver's permit was suspended. (Id.) On May 25, 2014, Plaintiff had a trial by jury which lasted until May 28, 2014. (Id.) Plaintiff was ultimately found not guilty. (Id.) Plaintiff contends that as a result of being incarcerated he lost his job and accumulated "a tremendous amount of debt." (Id.) Plaintiff also asserts that as a result of his incarceration his father almost became a ward of the state and his wife and young daughter became homeless. (Id. at 4.) Plaintiff contends that his family lost a "place to live, cars, clothes . . . ., everything." (Id.) Lastly, Plaintiff contends that Defendant submitted Plaintiff's "name, picture and address on public T.V. (Crime Stoppers) stating that [Plaintiff] committed a crime." (Id.)
As a result of Defendant's alleged actions, Plaintiff seeks 5,000,000 dollars in monetary and punitive damages. (Id. at 5.) On June 9, 2016, Plaintiff filed a motion for summary judgment. (Docket Entry 16.) On August 2, 2016, Defendant filed a motion for summary judgment. (Docket Entry 18.)
Summary judgment is warranted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Zahodnick v. Int'l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary judgment bears the burden of initially coming forward and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate the presence of a genuine issue of material fact which requires trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). When making a summary judgment determination, the Court must view the evidence and justifiable inferences from the evidence in the light most favorable to the non-moving party. Zabodnick, 135 F.3d at 913. However, the party opposing summary judgment may not rest on mere allegations or denials, and the Court need not consider "unsupported assertions" or "self-serving opinions without objective corroboration." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996). "[T]he pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits" should be viewed in the light most favorable to the non-moving party. Fed. R. Civ. P. 56(c); Gray v. Farley, 13 F.3d 142, 145 (4th Cir. 1993) (internal citation and quotations omitted). `In essence, a summary judgment must be granted if no genuine issue of material fact remains such that a reasonable jury could not return a verdict for a nonmoving party." Gray, 13 F.3d at 145 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987)) (quotation omitted).
In support of his motion for summary judgment Defendant alleges the following grounds: (1) Defendant is shielded from Plaintiff's claims of false arrest and malicious prosecution based on the doctrine of public official immunity (Def.'s Summ. J. Mot, at 5-10, Docket Entry 19), and (2) Plaintiff has failed to forecast evidence to support his 1983 claim and that Defendant is shielded from liability under the qualified immunity doctrine. (Id. at 10-16.) In support of his motion for summary judgment Plaintiff asserts that the facts detailed below indicate that Defendant used false information and forged documents to procure a warrant for Plaintiff's arrest. (Pl.'s Summ. J. Mot. at 1-3, Docket Entry 16.)
Plaintiff asserts that Defendant is liable for false arrest and false incarceration. (Compl. at 2, Docket Entry 2.) Defendant contends that both qualified immunity and public official immunity shield him from liability.
Here, Plaintiff was not subject to an unreasonable seizure because Defendant had probable cause to arrest Plaintiff. This case is similar to Brown v. Wiita, in which the plaintiff Robert Brown was arrested for a crime he did not commit. 7 F. App'x 275, 277 (4th Cir. 2001). The Court held that the officer's decision to arrest the plaintiff was objectively reasonable in light of the circumstances because
Id. at 279.
Here, an attempted robbery occurred in a grocery store parking lot. (Pl.'s Summ. J. Mot. at 6, Docket Entry 16-2.) According to the officer that reported to the scene of the crime, the victim
(Id. at 4.)
Similar to Brown, Plaintiff is unable to establish a constitutional violation because, although the underlying criminal proceedings were terminated in his favor, the prosecution was supported by probable cause. Like in Brown, where the description of the suspect closely resembled the plaintiff, the description of the suspect, in this case, was also very similar to Plaintiff. "[The victim] identified the suspect as a black male approx. 40 years of age, approx. 5'4"-5'6", approx., 200 lbs with short dark hair and wearing a dark shirt." (Id.) Plaintiff is an African American male, he weighs 250 pounds and he is 5'8. (Id. at 5.)
Plaintiff contends that the victim never identified Plaintiff as his assailant and that Defendant intentionally used forged documents to obtain an arrest warrant. (Pl.'s Summ. J. Mot. at 3, Docket Entry 16.) According to Plaintiff another officer named Amanda Craig conducted the photo array with Plaintiff and forged the corresponding documents to reflect that the victim identified Plaintiff as his assailant. (Id. at 2-3.) In his summary judgment motion, Plaintiff directs the Court's attention to the Sequential Identification Form. (Id.; Docket Entry 5 at 8-10.) Plaintiff suggests that the Court compare the way Officer Craig writes her numbers to the numbers filled in on the Sequential Identification Form in the areas designated for the victim to enter information. (Pl.'s Summ. J. Mot. at 2-3, Docket Entry 16.) Plaintiff argues that Officer Craig fraudulently filled out proportions of the Sequential Identification Form that were supposed to be filled out by the victim. (Id.) Plaintiff contends that this is apparent based on a comparison of the writing style displayed by the signatures and date signed by the victim and Officer Craig. (Id. at 3.)
"Under North Carolina common law, police officers are considered public officials." Smith v. Munday, No. 5:12-CV-202, 2014 WL 7341196, at *6 (W.D.N.C. Dec. 23, 2014) (citing Schlossberg, Goins, 540 S.E.2d 59, 56 (N.C. Ct. App. 2000)). "Police officers enjoy absolute immunity from personal liability for their discretionary acts done without corruption or malice." Id. (internal quotation and citation omitted). "An officer acts with malice if the act is (1) done wantonly, (2) contrary to the actor's duty, and (3) intended to be injurious to another." Id. (internal quotation and citation omitted).
Assuming arguendo that Officer Craig did fraudulently forge the photo identification forms, there is no evidence that Defendant condoned and participated in creating any fraudulent document. Plaintiff only provides conclusory allegations that Defendant knowingly used forged documents to obtain the arrest warrant. Id. (applying the public official doctrine because "no evidence of malicious or corrupt conduct" was presented by the Plaintiff); Whitlock v. Greenlee, No. 1:10CV958, 2013 WL 6247259, at *9 (M.D.N.C. Dec. 3, 2013), report and recommendation adopted, No. 1:10-CV-958, 2014 WL 820299 (M.D.N.C. Mar. 3, 2014) (concluding that "[e]ven if a jury determines that probable cause was lacking as to the search of the vehicle and subsequent arrest, it still remains that the record is devoid of any evidence showing maliciousness or corruption by Defendant"); see also Bishop v. Cty. of Macon, 620 F. App'x 148, 150 (4th Cir. 2015) ("Here, the [plaintiffs'] have neither alleged nor presented any evidence demonstrating that [the defendants] acted maliciously, corruptly, or outside the scope of their official authority. Moreover, [the plaintiffs'] mere allegations of gross negligence cannot defeat immunity."); Smith v. Garcia, No. 5:08-CV-577-D, 2010 WL 3361653, at *4 (E.D.N.C. Aug. 20, 2010) (conduct was not "corrupt or malicious" and he did not act "outside of and beyond the scope of his duties" notwithstanding allegations that Defendant shot the plaintiff and took too long to call a medic). Thus, Plaintiff's malicious prosecution claim fails because there was probable cause to arrest Plaintiff and Plaintiff failed to provide evidence creating a genuine issue of material fact regarding whether Defendant was corrupt or acted with malice.
Being pro se, Plaintiff's motion for summary judgment is organized in a manner in which Plaintiff states separate facts and provides an argument to support each fact. (PI. Summ. J. Mot. at 1-4, Docket Entry 16.) First, Plaintiff states that neither he nor his vehicle fit the description of the suspect or the vehicle at issue in this case. (Id. at 1-2.) As stated above, coupled with the photo identification, the Court finds that the description of the suspect and Plaintiff were close enough to obtain an arrest warrant.
Next, Plaintiff contends that because Defendant did not see video footage of the incident, there was no evidence tying Plaintiff to the scene of the crime. (Id. at 2.) Plaintiff also contends that Defendant never saw the tag number on the vehicle leaving the scene of the crime. However, the information obtained from the victim and the photo array provided sufficient evidence to establish probable cause to obtain an arrest warrant under the circumstances.
Lastly, Plaintiff contends that Defendant "knew or at least should have known that he had the wrong person . . . [and that Defendant] used forged documents and false information to procure a warrant for [Plaintiff's] arrest."
In his complaint, Plaintiff also contends that Defendant "viciously slandered [Plaintiff's] character on public T.V." by "run[ning] [his] name, picture and address on public TV. (Crime Stoppers)." (Compl. at 4, Docket Entry 2.) According to North Carolina law "[s]poken communication to a third person of false and defamatory words which `tend to prejudice another in his reputation, office, trade, business, or means of livelihood' is actionable slander.'" Averitt v. Rozier, 119 N.C. App. 216, 218, 458 S.E.2d 26, 28 (1995) (citing Morrow v. Kings Department Stores, 57 N.C. App. 13, 20, 290 S.E.2d 732, 736, disc, review denied 306 N.C. 385, 294 S.E.2d 210 (1982)). "Slander per se is an oral communication to a third person which amounts to (1) an accusation that the plaintiff committed a crime involving moral turpitude; (2) an allegation that impeaches the plaintiff in his trade, business, or profession; or (3) an imputation that the plaintiff has a loathsome disease." Averitt, 119 N.C. App. at 218, 458 S.E.2d at 28. (internal citation omitted). A qualified privilege may apply to statements that are otherwise considered defamatory. Sbillington v. K-Mart Corp., 102 N.C. App. 187, 194-95, 402 S.E.2d 155, 159 (1991). The qualified privilege applies to a defamatory statement
Id. (citing Shreve v. Duke Power Co., 97 N.C. App. 648, 650-51, 389 S.E.2d 444, 446 (1990)).
Here, the evidence, when considered in the light most favorable to Plaintiff, establishes that Defendant submitted Plaintiff's information to Crime Stoppers. "Where the occasion is privileged, there is a presumption that the defendant acted in good faith and the plaintiff has the burden of proving that the statement was made with actual malice." Averitt, 119 N.C. App. at 219, 458 S.E.2d at 29. "If the plaintiff cannot show actual malice, the qualified privilege becomes an absolute privilege, and there can be no recovery even though the statement was false." Id. The circumstances show that Plaintiff's information was submitted to Crime Stoppers in the course of a privileged occasion. It is axiomatic that "a police officer has an interest in undertaking an investigation into allegations of criminal conduct and in engaging in good faith effort" to reach out to someone that has information about a suspect. Id. Furthermore, the public has an interest in knowing the identity of a potential dangerous suspect. McCray v. Chapel Hill Police Dep't, No. 1:06CV984, 2008 WL 762260, at *14 (M.D.N.C. Mar. 19, 2008), aff'd, 289 F. App'x 605 (4th Cir. 2008) (concluding that the defendant's statement to the plaintiff's wife indicating that she should get tested for AIDS because one of the women the plaintiff raped had AIDS "falls well within the ambit of the qualified privilege described by the North Carolina Court of Appeals"); Averitt, 119 N.C. App.at 219, 458 S.E.2d at 29 (holding that statements made by the defendants during the course of their investigation to the alleged victim and a potential witness suggesting that the plaintiff had kidnapped and murdered an investigator who had been employed by the plaintiff's former wife were protected by the privilege); Kling v. Harris Teeter Inc., 338 F.Supp.2d 667, 673 (W.D.N.C. 2002), aff'd, 86 F. App'x 662 (4th Cir. 2004) (holding that the defendant was not liable for written libel for executing an arrest warrant for larceny because the plaintiff failed to establish that evidence that the defendant acted with malice). Plaintiff failed to come forward with any evidence to rebut the presumption that defendant was acting in good faith by submitting Plaintiff's information to crime stoppers or to show that defendant Johnson was acting with actual malice. Thus, Plaintiff's deformation claim fails because Defendant's qualified privilege applies to his submission of Plaintiff's information to Crime Stoppers.
For the reasons stated herein,
The Court
