David B. Fox, Plaintiff-appellant, v. William D. Lemon, Prosecuting Attorney for Wetzel County,west Virginia, Patricia Block, Defendants-appellees,andanthony Castronova, Wetzel County Chronicle, Defendants.david B. Fox, Plaintiff-appellant, v. Anthony Castronova, Defendant-appellee,andwilliam D. Lemon, Prosecuting Attorney for Wetzel County,west Virginia, Patricia Block and Wetzel Countychronicle, Defendants, 911 F.2d 722 (4th Cir. 1990)

The question presented is whether the district court properly dismissed appellant's federal and state claims. We affirm the dismissal of appellant's claims under 42 U.S.C. § 1983, but remand for the district court to determine whether to address the state law claims against appellees William Lemon and Patricia Block on the merits or to decline to exercise pendent jurisdiction over those claims.

* On June 15, 1989, appellant David Fox filed a complaint against the Wetzel County Chronicle and appellees William Lemon, Patricia Block, and Anthony Castronova in the United States District Court for the Northern District of West Virginia. Count I alleges a violation of 42 U.S.C. § 1983, and Counts II, III, and IV allege malicious prosecution, false arrest, and libel under West Virginia tort law. Fox claims that appellee Lemon, the Prosecuting Attorney for Wetzel County, wrongfully charged Fox with aiding and abetting embezzlement and receiving stolen property. The complaint further alleges that Lemon and Castronova, a New Martinsville police officer, planned and implemented illegal arrests of Fox for these offenses. Finally, the complaint asserts that Block, a reporter with the Wetzel County Chronicle, acting in complicity with Lemon and Castronova, wrote defamatory newspaper articles about Fox's purported refusal to take a polygraph examination and involvement in activities related to the receipt of stolen property charge.

Because the complaint did not allege a claim against the Wetzel Chronicle under Sec. 1983, the district court refused to exercise pendent jurisdiction over the libel claim against the Chronicle and granted the Chronicle's motion to dismiss. See Joint Appendix ("J.A.") at 50. With respect to appellee Lemon's motion to dismiss, the court ruled that Lemon was entitled to absolute immunity for the Sec. 1983 claims based on malicious prosecution and false arrest. See id. at 53. Similarly, the court ruled that appellee Castronova was entitled to summary judgment on the Sec. 1983 false arrest claim by application of the doctrine of qualified immunity. See id. at 108. Finally, the court held that none of the appellees could be held liable under Sec. 1983 on the claim that they conspired to defame Fox because reputation is not a liberty or property interest protected by the Due Process Clause. See id. at 79.

II

Appellant Fox does not challenge, and has no basis to challenge, the district court's dismissal of the state law libel claim against the Wetzel Chronicle. Thus, we need only deal with the claims against Lemon, Castronova, and Block in their individual capacities.

The complaint asserts three different potential bases of liability under Sec. 1983: malicious prosecution by Lemon, arrest without probable cause by Lemon and Castronova, and deprivation of reputation without due process by Lemon, Castronova, and Block acting in concert. The last of these claims does not state a cause of action under Sec. 1983 because reputation, standing alone, is not a liberty or property interest protected by the Due Process Clause. See Paul v. Davis, 424 U.S. 693, 701 (1976). With respect to the two remaining potential bases of liability under Sec. 1983, Lemon is entitled to absolute immunity, since his actions in ordering Fox's arrest and securing an indictment against Fox were "within the scope of his duties in initiating and pursuing a criminal prosecution." Imbler v. Pachtman, 424 U.S. 409, 410 (1976).

Castronova cannot be found liable under Sec. 1983 on the facts of this case because his actions fell within the bounds of qualified immunity. A police officer can only be found liable under Sec. 1983 for causing an unconstitutional arrest if "the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Malley v. Briggs, 475 U.S. 335, 344-45 (1986). Treating Castronova's motion to dismiss as a motion for summary judgment, to which appellant filed no opposition, the district court correctly concluded that there was no genuine issue of material fact on the issue of Castronova's immunity. Given the facts and circumstances of this case, Castronova "reasonably could have believed that he had probable cause to arrest [Fox]." J.A. at 108. Accordingly, the district court properly dismissed or granted summary judgment against all of appellant's claims under Sec. 1983.

The district court's treatment of the pendent claims for malicious prosecution, false arrest, and libel is more confusing. Having dismissed or granted summary judgment on all of the federal claims in the case, the court had discretion either to resolve the merits of the state law claims, see Washington v. Union Carbide Corp., 870 F.2d 957, 961 (4th Cir. 1989), or to dismiss those claims without prejudice, see United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). The district court expressly held that the pendent claims against Castronova should be dismissed without prejudice under Gibbs. See J.A. at 109. As noted above, this decision was within the court's discretion.

None of the district court's orders with respect to the motions to dismiss by Lemon and Block, however, expressly addressed the proper disposition of the state law claims against those defendants. See id. at 53, 79. It is impossible to determine whether the district court intended to dismiss these claims against Lemon and Block on the merits or to dismiss them in the exercise of its discretion not to hear pendent claims. Accordingly, the dismissal of the pendent state law claims against appellees Lemon and Block must be vacated and remanded. On remand, of course, the district court will be free either to address the merits of these claims or to dismiss them without prejudice. In all other respects, the judgments of the district court are affirmed.

IT IS SO ORDERED.