Teresa Lamonds v. J. T. Pierce, No. 13-1346 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1346 TERESA BREWER LAMONDS, Plaintiff - Appellant, v. J. T. PIERCE, In his official capacity as an officer with the Candor, North Carolina Police Department, Defendant - Appellee. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:09-cv-00962-CCE-LPA) Submitted: November 27, 2013 Decided: January 6, 2014 Before DUNCAN, DAVIS, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Duane K. Bryant, LAW OFFICES OF DUANE BRYANT, High Point, North Carolina, for Appellant. Dan M. Hartzog, Kari R. Johnson, CRANFILL, SUMNER & HARTZOG, LLP, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Theresa order granting Brewer summary Lamonds judgment appeals in the favor district of court s Sergeant J. T. Pierce and dismissing her state law malicious prosecution claim and her excessive force claim brought under 42 U.S.C. § 1983 (2006). Finding no error, we affirm. We review de novo a district court s grant of summary judgment, viewing the facts and the reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is proper 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). Lamonds first contends that the district court erred in granting summary judgment in Sergeant Pierce s favor on her malicious prosecution claim. claim in North To prove a malicious prosecution Carolina, a plaintiff must establish: (1) defendant initiated the earlier proceeding; (2) malice on the part of defendant in doing so; (3) lack of probable cause for the initiation (4) termination of plaintiff. 1994). Best of the v. the earlier Duke earlier proceeding Univ., 448 proceeding; in S.E.2d favor 506, of 510 and the (N.C. Here, the dispute is over whether Sergeant Pierce had probable cause to charge Lamonds with disorderly conduct for an 2 incident at the hall * town and for assault on a government official. We conclude that, considering the facts and circumstances underlying each charge that were known to Sergeant Pierce at the time, the district court did not err in finding that, as a matter of law, Sergeant Pierce had probable cause to bring the charges against Lamonds. See Best, 448 S.E.2d at 510 ( Whether probable cause exists is a mixed question of law and fact, but where existence of the facts probable cause are admitted is a or question established, the of the law for court. ); Martin v. Parker, 563 S.E.2d 216, 218 (N.C. Ct. App. 2002) (discussing probable cause); see also N.C. Gen. Stat. § 14-288.4(a)(2) State v. (2011) Noel, (enumerating 690 elements (defining S.E.2d of crime 10, assault of 13 on disorderly (N.C. a Ct. conduct); App. government 2010) official); State v. Mitchell, 592 S.E.2d 543, 547 (N.C. 2004) (defining criminal assault). of summary judgment Thus, we affirm the district court s grant in Sergeant Pierce s favor on Lamonds malicious prosecution claim. Turning to the excessive force claim, Lamonds asserts that her Fourth Amendment rights were violated as the result of * Lamonds was charged with two counts of disorderly conduct for her actions on the day in question; however, Sergeant Pierce brought only one of those charges against her. 3 an official policy or custom of the municipality or the police department. However, she names neither the town nor the police chief as a defendant. Thus, this claim must fail. Accordingly, we affirm the district court s order. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 4
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