REPORT AND RECOMMENDATION

THOMAS E. ROGERS, III, Magistrate Judge.

I. INTRODUCTION

Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights when they arrested him on October 4, 2013. Presently before the court is Defendants' Motion for Summary Judgment (Document # 91). Because he is proceeding pro se, Plaintiff was warned pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion for summary judgment could result in the motion being granted, resulting in dismissal of his claims. Plaintiff timely filed his response (Document # 96), and Defendants filed a Reply (Document # 97). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This report and recommendation is entered for review by the district judge.

II. FACTS

Plaintiff alleges that Defendant Captain Bobby Melton falsified "investigating [sic] reports in order to gain a warrant under malicious intent which violated by fourth and eight [sic] amendment rights to Due Process." Second Am. Compl. p. 1 (Document # 75). He also alleges that Defendant Larry Brown, Chief of Police, "came and arrested me knowing his officers had violated my rights" and that he "humiliated me and my family during the arrest." First Am. Compl. p. 1 (Document # 32).

Attached to their motion, Defendants provide the affidavits of Captain Melton and Chief Brown and the Grand Jury Indictment. Captain Melton avers that Plaintiff came to the attention of the Pageland Police Department soon after his arrival in town from North Carolina. Melton Aff. ¶

3 (Ex. A to Def. Motion). Specifically, one of the officers of the Department arrested a motorist for driving under suspension, and this motorist offered information to the officer in an effort to avoid going to jail. Id. ¶¶ 4-5. This motorist provided information to the officer regarding Plaintiff, including "that he was selling drugs, that he was from Monroe, North Carolina, and that he used to be her pimp." Id. ¶ 6. During the course of normal patrols, the officers also began to notice an increase in foot and vehicle traffic at Plaintiff's residence, which is an indicator of possible drug activity. Id. ¶ 7. This led Melton to contact the Union County (N.C.) Sheriff's Department to gather additional information about Plaintiff. Id. ¶ 8. Upon doing so, he discovered Plaintiff had a long criminal history, which included arrests for possession and distribution of narcotics and multiple assault charges. Id.

Because of this, the officers began keeping an eye on Plaintiff's house on a regular basis in order to monitor the activity there. Id. ¶ 9. Again, the officers observed a high level of activity, which they felt was consistent with someone who was selling drugs. Id. The officers also knew that Plaintiff associated with known gang members and persons known to be involved in selling drugs. Id. ¶ 10. As is common in small towns like Pageland, officers continued to receive information from citizens and arrestees indicating that Plaintiff was selling drugs. Id. ¶¶ 10-11. This type of information is seen as particularly trustworthy. Id. ¶ 11.

In that vein, officers were told on several occasions by one of their regular informants that she had been purchasing drugs from Plaintiff. Id. ¶ 12. This informant "would regularly provide information to officers regarding houses to watch for drug activity." Id. ¶ 13. On the morning of October 4, 2013, this informant came to the police station to talk to officers regarding Plaintiff. Id. ¶ 14. The informant told Melton that she had bought crack from Plaintiff the night before. Id. ¶ 15. Because of the amount of crack Plaintiff had, they felt that Plaintiff would still have drugs that morning. Id. Therefore, Melton arranged for the informant to do a controlled buy. Id. ¶¶ 15-16. After searching the informant, Melton supplied her with buy money and an audio recording device.

The informant left the police station, and after stopping at a convenience store to call Plaintiff, went to Plaintiff's residence. Id. ¶¶ 17-18. The informant went to Plaintiff's residence, called to Plaintiff by name, and purchased drugs from Plaintiff. Id. ¶ 19. She then returned to the police station and produced the crack cocaine sold to her by Plaintiff. Id. ¶ 20. The informant was debriefed, and her actions were verified by the audio recording. Id. ¶ 21.

Melton then applied for and obtained warrants for Plaintiff's arrest and for the search of his residence. Id. ¶ 22. His affidavit in support of the warrant application did not contain much of the information set forth above. It stated only "[t]hat on 10/4/2013, Brian Emmanuel Hancock did sell to a confidential subject one plastic bag containing an off-white, rock-like substance. This incident did occur within a half mile radius of Petersburg Elementary School, which is in the city limits of Pageland, South Carolina, in Chesterfield."1 Later that same day, several officers from the Pageland Police Department and one deputy from the Sheriff's Department went to Plaintiff's house to serve the warrants. Id. ¶ 24. As some of the officers approached the rear of the house, they encountered Plaintiff, who appeared to be fleeing. Id. ¶ 24. Plaintiff was arrested and searched, which turned up a gun and drugs. Id. ¶¶ 25-26. Because he was a felon in possession of a firearm, the charges were taken over by the ATF. Id. ¶ 28. A federal grand jury returned an indictment charging Plaintiff with drug and gun charges. Grand Jury Indictment (Ex. C to Def. Motion). The charges against him were subsequently dropped. Id. ¶ 29.

Chief Brown avers that he had no involvement whatsoever in the investigation leading up to Plaintiff's arrest or in obtaining the warrants. Brown Aff. ¶ 3 (Ex. B to Def. Motion). Chief Brown was the last to arrive of approximately six officers who went to Plaintiff's resident to serve the warrants. By the time he got out of his car and approached the residence, one or more of the other officers already had Plaintiff in custody at the back of the house. Id. ¶ 6.

Plaintiff does not attach any evidence to his response. However, he mentions that the transcript from the motion to suppress hearing in his criminal case will show "the lies Bobby Melton was caught in." Pl. Resp. 1. He did not attach a copy of the transcript to his response. However, he previously filed a document with the court entitled, "Discovery" (Document # 77), in which he states that he has not been able to get the full transcript "of my discovery," but he does have "the last 3 pages of it showing what the judge said about Bobby Melton and the lies he told on me." Attached to the document is pages 86-88 of a court transcript as well as a certificate of service for the Government's Motion to Dismiss Indictment Without Prejudice in U.S. v. Brian Emmanuel Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that `the most frequent use of judicial notice is in noticing the content of court records.'"). Hancock, Crim. No. 4:14-cr-451. Pages 86-88 of the transcript provided by Plaintiff references "defendant's motion to suppress" and includes the court's ruling "that probable cause for the issuance of the search and arrest warrants was not established." Transcript p. 86 (Document # 77-1). The court provided the following grounds for the ruling:

Transcript pp. 86-88.

Subsequent to this ruling, the Government moved to dismiss the indictment against Plaintiff.

III. STANDARD OF REVIEW

Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).

To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.

IV. DISCUSSION

Plaintiff alleges that Defendants violated his constitutional rights with respect to his arrest on October 4, 2013. His claims fall under 42 U.S.C. § 1983. Section 1983 "`is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). A legal action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). To be successful on a claim under § 1983, a plaintiff must establish two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

Specifically, Plaintiff alleges that Melton provided false information to a magistrate judge to obtain an arrest warrant and that Melton and Brown arrested him pursuant to that warrant. He argues that Brown knew that the warrant was issued based on false information. Plaintiff asserts that his arrest violated his rights under the Fourth and Eighth Amendments. While the Fourth Amendment, which protects against unreasonable seizure, is properly implicated by Plaintiff's allegations, the Eighth Amendment is not. See, e.g., Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977) ("Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.").

With respect to claims of wrongful arrest, the constitutional analysis is different depending upon whether the arrest was a warrantless arrest or was made pursuant to a warrant. See Dorn v. Town of Prosperity, 375 Fed.Appx. 284, 286 (4th Cir. 2010). "`As a general rule, an unlawful arrest pursuant to a warrant will be more closely analogous to the common law tort of malicious prosecution. An arrest warrant constitutes legal process, and it is the tort of malicious prosecution that permits damages for confinement pursuant to legal process. On the other hand, wrongful warrantless arrests typically resemble the tort of false arrest.'" Id. (quoting Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 4 (1st Cir.1995). Here, it is undisputed that Captain Melton obtained an arrest warrant prior to arresting Plaintiff. Thus, his claim is properly considered as one for malicious prosecution.

"To state such a claim [for malicious prosecution], a plaintiff must allege that the defendant (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) (citing Lambert v. Williams, 223 F.3d 257, 261 (4th Cir.2000), Durham v. Horner, 690 F.3d 183, 188 (4th Cir.2012)) (internal citations omitted).

It is undisputed that the criminal proceedings in this action terminated in Plaintiff's favor. However, Plaintiff's claim against Chief Brown fails because Plaintiff fails to show that he "caused" Plaintiff's arrest. Chief Brown avers that he did not participate in the investigation into Plaintiff that led to the arrest warrant, did not obtain the arrest warrant, nor did he arrest Plaintiff. Plaintiff has failed to present any evidence to dispute these facts. Therefore, his claim against Chief Brown is without merit.2

Captain Melton, however, did conduct the investigation into Plaintiff's activities and obtained the warrant pursuant to which Plaintiff was arrested. Captain Melton argues that he is entitled to qualified immunity. Qualified immunity "shields government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person." Meyers v. Baltimore County, 713 F.3d 723, 731 (4th Cir.2013). "Not all constitutional violations are violations of clearly established . . . constitutional rights, so a plaintiff may prove that an official has violated his rights, but an official may still be entitled to qualified immunity." Armstrong, 810 F.3d at 907 (citing Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir.1991) (internal citations and quotations omitted). Qualified immunity turns on the "objective reasonableness of an official's conduct, as measured by reference to clearly established law." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When evaluating a qualified immunity defense, the court must determine (1) whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendants' conduct violated a constitutional right, and (2) whether that right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 230-33 (2009).

As set forth above, the district judge in the criminal action determined that probable cause was lacking to support Plaintiff's arrest. The district judge found that Captain Melton omitted certain evidence of which he was aware when he applied for the arrest warrant that would call into question the reliability of the confidential subject. Specifically, the judge found that Captain Melton declined to tell the magistrate judge that the subject had been drinking, that she was not under surveillance at the time she made the buy, and that she made other stops between the time the left the police office and the time she made the buy. In U.S. v. Lull, 824 F.3d 109, 118 (4th Cir. 2016), on considering whether probable cause existed, the Fourth Circuit stated "[b]ecause the magistrate did not have the benefit of the omitted information concerning the informant's reliability, the informant's statements were not properly considered as a basis for probable cause. When these statements are excluded, we conclude that there remains insufficient information from which to find probable cause."

Likewise in Plaintiff's underlying criminal case, if Captain Melton had included the information regarding the confidential subject's alcohol consumption, her lack of surveillance, and her stops at other places before meeting Plaintiff, she loses some indicia of reliability. "When the information forming the basis for probable cause comes from an informant, the informant's veracity and reliability are critical to the totality of the circumstances test. . . . While these are not the only factors to be considered, . . . a judicial officer's assessment of probable cause . . . must include a review of the veracity and basis of knowledge of persons supplying hearsay information." Id. (citations and internal quotation marks omitted). Because the affidavit contained only the confidential subject's statement that Plaintiff sold her one plastic bag containing an off-white, rocklike substance, the omitted facts calling into question her reliability are material and negate a finding of probable cause.

However, the objective reasonableness standard entitling a defendant to qualified immunity on this issue is less stringent that the actual probable cause necessary to make an arrest. Torchinsky, 942 F.2d at 261; see also Hunter v. Bryant, 502 U.S. 224, 227 (1991) ("Even law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity.") (internal quotation marks and citation omitted); Smith v. Reddy, 101 F.3d 351 (4th Cir. 1996) (in qualified immunity context, "[t]he reasonableness of [defendant's] conduct does not turn on whether probable cause was, in fact, present"). To receive qualified immunity, an officer need not have actual probable cause, but only arguable probable cause. See Gomez v. Atkins, 296 F.3d 253, 261-62 (4th Cir. 2002) ("In our assessment of whether Atkins is entitled to qualified immunity, however, the question is not whether there actually was probable cause for the murder warrant against [Gomez], but whether an objective law officer could reasonably have believed probable cause to exist."); Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010) ("To receive qualified immunity, an officer need not have actual probable cause, but only `arguable' probable cause."); Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999) ("The issue for immunity purposes is not probable cause in fact but arguable probable cause."); Lea v. Kirby, 171 F.Supp.2d 579, 583 (M.D.N.C. 2001) ("[I]n determining whether or not an officer is entitled to qualified immunity under Section 1983, the issue is whether arguable probable cause exists.").

A law enforcement officer enjoys a shield of qualified immunity from civil damages under § 1983 when a neutral magistrate issues a warrant based upon the affidavit submitted by the officer. Messerschmidt v. Millender, 565 U.S. 535, 547 (2012) (citing United States v. Leon, 468 U.S. 897, 922-23 (1984)). An exception to this general rule exists where "it is obvious that no reasonably competent officer would have concluded that a warrant should have issued . . . for example, where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986) and Leon, 468 U.S. at 923). The pivotal question in this case centers around what information should be considered in making the determination of objectively reasonable belief for qualified immunity purposes3 because, as set forth in more detail below, Captain Melton's investigation into Plaintiff's activities resulted in more information than what was included in his warrant application affidavit.4 As set forth by the district court in Patrick v. City of Petersburg, Virginia, No. 3:15-cv-565, 2016 WL 5799311 (E.D. Va. Sept. 30, 2016):

Id. at n.30; see also Malley, 475 U.S. at 345 (noting that the consideration for qualified immunity purposes is "whether a reasonably well-trained officer [under the circumstances] would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant" (emphasis added)). Consideration of information outside of the warrant application affidavit but known to the officer seeking the warrant is consistent with the well-held principle that the qualified immunity inquiry regarding probable cause depends on the officer's "perceptions at the time of the incident in question." Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994).

Captain Melton's affidavit in the present case provides additional information regarding his investigation that was not included in his affidavit in support of his warrant application to the magistrate judge. Captain Melton avers that Plaintiff came to the attention of the Pageland Police Department soon after his arrival in town from North Carolina. Melton Aff. ¶ 3 (Ex. A to Def. Motion). Specifically, one of the officers of the Department arrested a motorist for driving under suspension, and this motorist offered information to the officer in an effort to avoid going to jail. Id. ¶¶ 4-5. This motorist provided information to the officer regarding Plaintiff, including "that he was selling drugs, that he was from Monroe, North Carolina, and that he used to be her pimp." Id. ¶ 6. During the course of normal patrols, the officers also began to notice an increase in foot and vehicle traffic at Plaintiff's residence, which is an indicator of possible drug activity. Id. ¶ 7. This led Melton to contact the Union County (N.C.) Sheriff's Department to gather additional information about Plaintiff. Id. ¶ 8. Upon doing so, he discovered Plaintiff had a long criminal history, which included arrests for possession and distribution of narcotics and multiple assault charges. Id.

Because of this, the officers began keeping an eye on Plaintiff's house on a regular basis in order to monitor the activity there. Id. ¶ 9. Again, the officers observed a high level of activity, which they felt was consistent with someone who was selling drugs. Id. The officers also knew that Plaintiff associated with known gang members and persons known to be involved in selling drugs. Id. ¶ 10. Officers within the Department continued to receive information from citizens and arrestees indicating that Plaintiff was selling drugs. Id. ¶¶ 10-11. Captain Melton averred that this was common in small towns like Pageland. Id. Captain Melton arranged the controlled buy at issue after one of their "regular informants," who "would regularly provide information to officers regarding houses to watch for drug activity," informed him that she had been purchasing drugs from Plaintiff. Id. ¶¶ 12-13. On the morning of October 4, 2013, this informant came to the police station to talk to officers regarding Plaintiff. Id. ¶ 14. She told Captain Melton that she had bought crack from Plaintiff the night before. Id. ¶ 15. Because of the amount of crack Plaintiff had, they felt that Plaintiff would still have drugs that morning. Id. Therefore, Captain Melton arranged for the informant to do a controlled buy. Id. ¶¶ 15-16. Plaintiff does not dispute any of these facts.

It is clear this information was not provided to the magistrate judge when Captain Melton applied for the arrest warrant following the controlled buy. Nevertheless, "the critical question [when assessing qualified immunity] is whether the officer could have reasonably thought there was probable cause to seek the warrant." Wadkins v. Arnold, 214 F.3d 535, 539 (4th Cir.2000) (emphasis in original). Based upon the circumstances leading up to the buy made by the informant, considered along with the buy, an officer could reasonably have believed that probable cause existed to seek a warrant for Plaintiff's arrest. Officers received information from several individuals that Plaintiff was selling drugs, knew that he associated with known drug dealers, observed activity at Plaintiff's house that they felt was consistent with drug activity, and received information from officers in another county regarding Plaintiff's past arrests for possession and distribution of narcotics. As stated above, the standard for objective reasonableness is less stringent than the standard for probable cause. Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley, 475 U.S. at 341. Based on the above, Captain Melton is entitled to qualified immunity from damages because based on the totality of the information known to him, a reasonable officer under the circumstances would have arguably believed that probable cause existed. Accordingly, summary judgment is appropriate.

V. CONCLUSION

For the reasons discussed above, it is recommended that Defendants' Motion for Summary Judgment (Document # 91) be granted and this case be dismissed in its entirety.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).