Harris v. Gourley, No. 1:2010cv00099 - Document 39 (M.D. Ga. 2013)
Court Description: ORDER granting 33 Motion for Summary Judgment; granting 35 Motion to Exclude Expert Testimony of Plaintiff.Ordered by Judge W. Louis Sands on 3/27/13 (wks)
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Harris v. Gourley Doc. 39 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E MID D LE D ISTRICT OF GEORGIA ALBAN Y D IVISION CHRISTOPHER WAYNE HARRIS, Plain tiff, v. BRUCE GOURLEY, Defen dan t. : : : : : : : : : : CASE NO.: 1:10 -CV-99 (WLS) ORD ER Presen tly pen din g before the Court are Defen dan t Bruce Gourley’s Motion for Summary J udgmen t (Doc. 33) an d Motion to Exclude “Expert” Testim on y of Plain tiff (Doc. 35). For the followin g reason s, Defen dan t’s Motion for Sum m ary J udgm en t (Doc. 33) and Motion to Exclude (Doc. 35) are GRAN TED . PROCED U RAL H ISTORY On February 1, 20 10 , Plain tiff Christopher Wayn e Harris filed a Com plain t in th e Superior Court of Terrell Coun ty, Georgia, allegin g state law claim s for m alicious prosecution , false arrest, an d false im prisonm en t. (Doc. 1-1.) On J un e 29, 20 10 , he amen ded h is Complain t to in clude claims for false arrest an d malicious prosecution in violation of the Fourth Am en dm en t un der 42 U.S.C. § 1983. (Id. at 75-77.) Plain tiff n amed as a defen dan t in h is Complain t Bruce Gourley, an arson in vestigator an d can in e h an dler for th e Georgia In suran ce an d Safety Fire Commission er’s Office. (Id.) Defen dan t Gourley’s duties in clude assistin g coun ty agen cies in in vestigatin g cause an d origin of fires an d upon concluding crim inal intent exists in connection with a fire an d th en pursuin g crimin al prosecutions on behalf of th e agen cy. Plain tiff alleges that 1 Dockets.Justia.com Defen dan t Gourley swore out two warran ts again st Plain tiff related to a fire at Plain tiff’s residen ce in Dawson , Georgia, falsely accusing Plain tiff of arson an d crim in al damage to property in the secon d degree. (Id.) Plain tiff further alleges th at Defen dan t Gourley falsely testified before th e gran d jury of Terrell Coun ty, Georgia, th at Plain tiff committed th ose crim es. (Id.) Th e criminal prosecution was dismissed by order of n olle prosequi March 4, 20 0 9, for lack of eviden ce to prosecute Plain tiff. (Id.) Defen dan t Gourley removed this case to this Court on J uly 29, 20 10 .1 (Doc. 1). On August 5, 20 10 , Defen dan t Gourley filed a Motion to Dism iss th is matter. (Doc. 3.) On September 14, 20 10 , Plain tiff th en moved to amen d h is Complain t to in clude addition al factual support for his Section 1983 false arrest an d malicious prosecution claims. (Doc. 8 .) On J an uary 14, 20 11, the Court gran ted Plain tiff’s Motion to Am en d. (Doc. 16.) On J an uary 26, 20 11, Defen dan t Gourley moved to dism iss Plain tiff’s Am en ded Complain t. (Doc. 17.) The Court ultimately foun d that Plain tiff’s malicious prosecution an d false arrest claims un der Section 1983 could proceed; th e Court dism issed Plaintiff’s state law claim s for false arrest, false im prison m ent, an d m alicious prosecution un der th e Georgia Tort Claim s Act. (Docs. 22, 29.) On May 1, 20 12, Defen dan t Gourley m oved for sum m ary judgm en t as to Plain tiff’s remain in g claims, to w it: false arrest an d m alicious prosecution under Section 1983. (Doc. 33.) Per Defen dan t Gourley, h e is en titled to summary judgmen t because probable cause existed for the actions h e took im plicatin g Plain tiff, an d even if it did n ot, h e is still en titled to qualified im mun ity because th e facts an d circum stan ces are such that h e reason ably could have believed th at probable cause existed. (Id.) Plain tiff filed a 1 A second defendant, Terrell County Sheriff J ohn Bowens, settled the claims against him prior to removal and is no longer a party to this case. 2 brief in opposition to Defen dan t Gourley’s Motion for Summary J udgmen t on May 24, 20 12. (Doc. 34.) In support of h is claims, Plain tiff proffered h is own affidavit statin g that the fire started in a ceilin g fan . (Doc. 34-1.) On J un e 11, 20 12, Defen dan t Gourley filed a reply in support of its motion for summary judgmen t. (Doc. 36.) Defen dan t Gourley also moved to exclude Plain tiff’s “expert” testim on y regardin g the ceilin g fan as the source of the fire. (Doc. 35-1.) Plain tiff did n ot file a respon se to this motion . (See Docket.) Defen dan t Gourley also waited until it filed its reply to file a Statemen t of Material Facts. (Doc. 37.) On March 11, 20 13, th e Court directed Plain tiff to file a respon sive Statemen t of Material Facts. (See Docket.) Plain tiff filed h is response to Defen dan t Gourley’s Statem en t of Material Facts on March 18, 20 13. (Doc. 38.) All of th e briefin g for Defen dan t’s Motion for Summ ary J udgmen t an d Motion to Exclude has n ow concluded, an d the Court fin ds th at Defen dan t’s Motion s are ripe for review. FACTU AL BACKGROU N D Th e followin g facts are derived from the Complain t (Docs. 1-1, 8); Defen dan t Gourley’s An swer (Doc. 24); Defen dan t Gourley’s Statemen t of Un disputed Facts (Doc. 37); an d Plain tiff’s Responsive Statem en t of Material Facts (Doc. 38), all of wh ich were subm itted pursuan t to Local Rule 56 2 ; an d th e record in th is case. Wh ere relevan t, th e 2 Local Rule 56 states: The movant for summ ary judgm ent under Rule 56 of the Federal Rules of Civil Procedure shall attach to the m otion a separate and concise statem ent of the m aterial facts to which the movant contends there is no genuine issue to be tried. Each m aterial fact shall be num bered separately. Statem ents in the form of issues or legal conclusions (rather than m aterial facts) will not be considered by the court. Affidavits and the introductory portions of briefs do not constitute a statem ent of m aterial facts. The respondent to a motion for summary judgment shall attach to the response a separate and concise statem ent of m aterial facts, num bered separately, to which the respondent contends there exists a genuine issue to be tried. Response shall be m ade to each of the m ovant’s numbered m aterial facts. All m aterial facts contained in the m oving party’s statem ent which are not specifically controverted by the respondent in respondent’s statem ent shall be deem ed to have been adm itted, unless otherwise 3 factual sum m ary also contains undisputed an d disputed facts derived from the pleadin gs, th e discovery an d disclosure materials on file, an d an y affidavits, all of wh ich are con strued in a light most favorable to Plain tiff as the n on m ovin g party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Fed. R. Civ. P. 56. On or about J anuary 20 , 20 0 8, there was a fire at Plain tiff’s residen ce. (Doc. 37 ¶ 5.) Defen dan t Gourley in vestigated the fire. (Id.) Defen dan t Gourley obtain ed permission from Plain tiff an d his estran ged wife, Tammy Harris, wh o h eld title to the h ouse, to en ter an d search the premises. (Id. ¶ 6.) In the master bedroom, where th e fire damage was con cen trated, Defen dan t Gourley states that he saw a burn pattern —an area of severely burn t m aterials in dicatin g that the fire had burn ed m ore in ten sely in that location —on th e floor at the foot of th e bed. (Id. ¶ 7.) Per Defen dan t Gourley, burn pattern s often in dicate th at a fire was deliberately started. (Id.) Cotton , Defen dan t Gourley’s canine, wh o is trained to detect hydrocarbons, includin g aceton es an d alcohols, alerted Defen dan t Gourley to a possible acceleran t on the floor at the foot of th e bed in th e area of th e burn pattern . (Id. ¶¶ 4, 8.) Defen dan t Gourley gath ered fire debris from th is area an d sen t it to a GBI lab for an alysis. (Id. ¶ 8.) Defen dan t Gourley th en examin ed an d evaluated multiple items to determin e whether each item might have acciden tly caused the fire. (Id. ¶ 9.) He examin ed th e ceilin g fan , a space h eater, an d the electrical outlets. (Id.) Defen dan t Gourley states th at h e concluded th at each was n ot the cause of the fire. (Id.) Gourley states that, inappropriate. The respon se that a party has insufficien t knowledge to adm it or den y is not an acceptable response unless the party has complied with the provisions of Rule 56(f) of the Federal Rules of Civil Procedure. All docum ents and other record m aterials relied upon by a party moving for or opposing a m otion for summ ary judgm ent shall be clearly identified for the court. Where possible, dates, specific page numbers, and line numbers shall be given. 4 based on , am on g other thin gs, the acceleran t detection by Cotton , the burn pattern , an d the elim in ation of poten tial acciden tal causes, h e con cluded th at the fire was probably intentionally set. (Id. ¶ 10 .) In con siderin g who migh t have set th e fire, Defen dan t Gourley states th at h e looked in to which person s might have had access to the house. (Id. ¶ 11.) The en try poin ts to the house showed n o signs of forced en try, accordin g to Defen dan t Gourley’s in vestigation . (Id. ¶ 12.) Plain tiff had reported open in g locked doors to gain access to the h ouse. (Id.) Therefore, Defen dan t Gourley stated th at he focused on person s wh o had a key to the house. (Id.) Plain tiff’s estran ged wife had a key to the house. (Id. ¶ 13.) She, however, h ad an alibi for the en tire day, per Defen dan t Gourley. (Id.) Defen dan t Gourley con cluded that this ten ded to exclude her as a suspect. (Id.) Plain tiff, as th e residen t of th e house, also h ad a key. (Id. ¶ 14.) in formed Defen dan t Gourley that n o on e else had a key. (Id.) Plain tiff As part of the in vestigation , Defen dan t Gourley an d a local law en forcemen t officer, Otis Seamy, in terviewed Plain tiff on more th an on e occasion . (Id. ¶ 15.) Durin g these in terviews, Defen dan t Gourley reports that Plain tiff’s statemen ts con tain ed a number of in con sisten cies or “red flags,” that led Defen dan t Gourley to conclude that Plain tiff was n ot bein g en tirely truth ful. (Id.) These “red flags” in cluded: 1) Plain tiff stated that he saw sm oke in the fron t door area when he pulled up at th e carport, th ough , per Defen dan t Gourley, th e fron t door can n ot be seen from th ere; 2) despite seein g/ smellin g sm oke, Plain tiff called h is frien d/ employee Billy Courter (twice), waited for Courter to arrive from miles away, wen t in to the house, an d removed a vehicle from the carport, all before callin g 911; 3) Plain tiff claimed that he called Courter to brin g a flashlight because the ligh ts in the h ouse were un expectedly out, but Plain tiff is a former police 5 officer wh o sh ould n ot h ave been afraid to en ter a dark house, 4) Plain tiff (an d Courter) kept tryin g to draw atten tion to the ceilin g fan as the source of the fire, a common diversion ary technique, an d 5) Plain tiff claimed to have turn ed th e space h eater off, but th e on / off switch was in th e “on” position (alth ough th e heater automatically turn ed off because it was n ot in an upright position). (Doc. 33-2 at 6, ¶ 17.) Defen dan t Gourley also n oted th at, in on e of the room s of the h ouse, Plain tiff’s pool table was covered with plastic as if to protect it from damage. (Doc. 37 ¶ 16.) Defen dan t Gourley though t th at this was suspicious as an outsider arson ist would h ave had n o motive to protect th e pool table. (Id.) Addition ally, in th e six m onth s prior to th e fire at Plain tiff’s residence, th ere were two fires whose origins could n ot be con clusively determin ed at properties own ed by Plain tiff. (Id. ¶ 17.) Th e second fire, in December 20 0 7, h ad resulted in a death. (Id.) Fin ally, accordin g to th e reports Defen dan t Gourley received, Plain tiff’s associate Courter, who is a con victed felon , was at the scen e of all three fires. (Id.) Based on in form ation learned in the investigation, Defendan t Gourley concluded th at Plain tiff h ad multiple possible motives to start a fire, in cludin g marital an d financial troubles an d an ger m anagem ent issues. (Id. ¶ 18.) Based on this investigation, Defen dan t Gourley discussed th e matter with Officer Seay, an d th ey con cluded th at it was probable th at Plain tiff h ad set the fire. (Id. ¶ 19.) Accordin gly, on J an uary 28, 20 0 8, Defen dan t Gourley swore out affidavits seekin g warran ts for Plain tiff’s arrest for (1) arson in the first degree, a violation of O.C.G.A. § 16-7-70 ; an d (2) crim inal dam age to property in the secon d degree, a violation of O.C.G.A. § 16-7-23. (Id. ¶ 19; see also Doc. 1-2 at 10 -13). Specifically, the affidavits attached to the arrest warran t in cludin g th e followin g statemen ts of the offen ses: 6 Ars o n 16 -7-6 0 : Accused did un lawfully commit the offen se of Arson in th e First Degree by kn owin gly dam agin g th e property of Farm Bureau who h ad in terest by mean s of fire an d without their permission . This bein g in violation of O.C.G.A. 16-7-70 . Crim in a l D a m age to Pro pe rty, 2 n d D e gre e : Accused did recklessly an d in ten tion ally by mean s of fire damage the property belon gin g to Tam m y Harris an d Farm Bureau. Value being over $ 50 0 .0 0 . (Doc. 1-1 at 11, 13.) 3 After Plain tiff was arrested, Defen dan t Gourley received th e GBI lab report an alyzin g th e fire debris. (Doc. 37 ¶ 21.) The report in dicated th at th e test procedure “fail[ed] to reveal th e presen ce of an y ign itable liquids.” (Id.) Th e report also in dicated, however, th at “[t]h e procedure employed does n ot detect the presence of light volatiles such as certain alcohols and aceton e.” (Id.; Doc. 33-2 at 12-13.) Wh ile Defendan t Gourley states th at it was n ot irrelevan t to h im th at the test failed to reveal th e presen ce of an y acceleran t, he states that h e “also concluded that th e test did n ot mean in gfully diminish th e likelihood that the fire was th e result of arson because th e lab was un able to test for ‘light volatiles such as certain alcohols an d aceton e.’” (Doc. 37 ¶ 22.) Accordin g to Defen dan t Gourley, the con clusion that he drew from the GBI report was th at the lab was un able to test for a n u mber of common , flammable, h ouseh old items frequen tly used to start fires, in cludin g: lacquer, varn ish, n ail polish remover, an tifreeze, win dshield washer fluid, rubbin g alcoh ol, paint thinn er, an d rubber cem en t. (Id.) In April and May of 20 0 8, after Plain tiff was arrested, Defen dan t Gourley prepared an d then supplemen ted a report of the in vestigation . (Id. ¶ 23; Doc. 33-2 at 14-22.) Per Defen dan t Gourley, h e believes th at the report accurately sum m arizes h is investigation. (Doc. 37 ¶ 23.) After Plain tiff was arrested, Defen dan t Gourley testified Defendant Gourley believed that Plaintiff’s associate, Courter, may have also assisted Plaintiff in setting the fire. (Doc. 37 ¶ 20 .) However, Defendant Gourley did not think that he had sufficient evidence to have him arrested and so did not swear out a warrant concerning him. (Id.) 3 7 before a Terrell Coun ty gran d jury con cernin g the fire. (Id. ¶ 24.) On J un e 2, 20 0 8, th e gran d jury in dicted Plain tiff on two coun ts: (1) arson in the first degree, an d (2) crim in al damage to property in the second degree. (Id. ¶ 25; see also Doc. 1-2 at 14-16.) Defen dan t Gourley h ad n o in volvemen t in any post-arrest activities involvin g Plain tiff. (Doc. 37 ¶ 26.) The crim in al prosecution was dismissed by order of nolle prosequi March 4, 20 0 9, for lack of eviden ce to prosecute Plain tiff. (Doc. 1-1 at 17.) D ISCU SSION I. MOTION TO STRIKE On J un e 11, 20 12, Defen dan t moved to exclude Plain tiff’s testim on y regardin g th e “origin ” of the fire. (Doc. 35.) In his affidavit, Plain tiff states that “[t]h e fire started because an electrical circuit in the ceilin g fan had shorted out.” (Doc. 34-1 at 2.) In support of this statemen t, Plain tiff states that he “worked in con struction , in cludin g building h ouses, rem odeling houses, in stalling ceiling fans.” (Id.) Defen dan t con ten ds that Plain tiff “is attemptin g to presen t himself as h is own expert” via his proffer of these statemen ts an d an y addition al related statem en ts. (Doc. 35-1 at 1.) Defen dan t objects to Plain tiff’s submission of himself as an “expert” on th e groun ds th at 1) Plain tiff was never disclosed as an expert during discovery an d 2) Plaintiff h as not shown that his testim on y is admissible under Daubert v. Merrell Dow Pharm aceuticals, In c., 50 9 U.S. 579, 589 n .7, 597 (1993). Plain tiff did n ot file a response in opposition to Defen dan t’s Motion to Exclude. Th e Supreme Court made “abundan tly clear” in Daubert th at Rule 70 2 compels a District Court to perform the critical gatekeepin g function con cernin g the admissibility of expert scientific eviden ce, an d in Kum ho Tire Co. v. Carm ichael, 526 U.S. 137, 147 (1999), that th e Rule requires th e same gatekeepin g fun ction wh en considerin g th e 8 adm issibility of technical expert eviden ce. United States v. Frazier, 38 7 F.3d 1244, 1260 (11th Cir. 20 0 4). The Eleven th Circuit in structs th at the District Court’s gatekeepin g fun ction “‘inh eren tly require[s] th e trial court to con duct an exactin g an alysis’ of th e foun dations of expert opin ion s to en sure th ey meet th e stan dards for admissibility un der Rule 70 2.’” Id. (quoting McCorvey v. Baxter H ealthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 20 0 2)) (emph asis an d alteration in origin al). Courts in th e Eleven th Circuit “en gage in a rigorous three-part inquiry” in determ ining the adm issibility of expert testim on y under Rule 70 2. Frazier, 387 F.3d at 1260 . Trial courts must con sider wh eth er: (1) the expert is qualified to testify competen tly regardin g th e matters [s]h e in tends to address; (2) the meth odology by which th e expert reach es [h er] con clusions is sufficien tly reliable as determ in ed by th e sort of inquiry m andated in Daubert; an d (3) the testim on y assists the trier of fact, th rough th e application of scientific, technical, or specialized expertise, to un derstan d that eviden ce or to determ in e a fact in issue. Id. (quoting City of Tuscaloosa v. H arcros Chem s., In c., 158 F.3d 548, 562 (11th Cir. 1998)). Th e Eleven th Circuit further in structs th at regardless of overlap amon g th e three requiremen ts of qualification, reliability, an d h elpfuln ess, “they remain distin ct concepts an d the courts must take care n ot to con flate th em.” Id. Furth erm ore, “[t]he burden of establish ing qualification, reliability, an d h elpfuln ess rests on th e propon en t of the expert opinion.” Id. Ultimately, the reliability in quiry must be tied to the particular facts of the case. Kuhm o Tire Co., 526 U.S. at 150 (in tern al citation s om itted). Equally im portan t to th e gate-keepin g function is a determin ation of whether the proposed testim on y is relevant. Daubert, 50 9 U.S. at 591. Relevan t testim on y is that testim on y 9 th at “logically advan ces a material aspect” of a party's case. Allison v. McGhan Medical Corp., 184 F.3d 130 0 , 1312 (11th Cir. 1999). Un der Federal Rule of Eviden ce 70 2, a witn ess m ay be qualified as an expert by reason of kn owledge, skill, experien ce, train ing, or education . Furtherm ore, “[d]isputes as to the stren gth of [a witn ess’] creden tials, faults in his use of differen tial etiology as a m eth odology, or lack of textual authority for h is opin ion , go to the weight, n ot th e adm issibility, of h is testim ony.” McCurdy v. Ford Motor Co., No. 1:0 4-cv-155, 20 0 6 WL 2793167, at *4 (M.D. Ga. Sept. 26, 20 0 6) (quotin g McCullock v. H.B. Fuller Co., 61 F.3d 10 38, 10 44 (2d Cir. 1995)). “Vigorous cross-exam in ation , presen tation of con trary eviden ce, an d careful in struction on the burden of proof are the tradition al an d appropriate mean s of attackin g [debatable] but admissible eviden ce.” Maiz v. Viran i, 253 F.3d 641, 666 (11th Cir. 20 0 1). The Court’s role in addressin g a Daubert m otion “is n ot in ten ded to supplan t the adversary system or the role of the jury.” Allison , 184 F.3d at 1311. As n oted above, although Plain tiff has “techn ically” proffered h imself as an expert, h e h as taken n o steps to show th at his expert testim on y meets th e requiremen t of Daubert. The case law makes clear that it is the propon en t of th e expert testim on y wh o “bears th e burden of demon stratin g that each of his proffered experts is qualified to ren der an expert opin ion , that th e opin ion is reliable, an d that the opin ion would assist the trier of fact in resolving a disputed issue of material fact.” McDow ell v. Brow n , 392 F.3d 1283, 1298 (11th Cir. 20 0 4); W hite v. Chicago Pn eum atic Tool Co., 994 F. Supp. 1478, 148 1 (S.D. Ga. 1998) (“Th e propon en t[] of th e eviden ce h a[s] th e burden of proving adm issibility of the testim on y by a prepon derance of the eviden ce . . . In order to prove admissibility of scien tific evidence, the propon en t must show that th e proffered 10 eviden ce is “(1) scientific kn owledge that (2) will assist th e trier of fact to un derstand or determ ine a fact in issue.”) (quoting Daubert, 50 9 U.S. at 592-93). Plain tiff has m erely in formed the Court that h e worked in con struction previously. This statemen t, with out more, is insufficien t to satisfy the Daubert in quiry. Th erefore, because Plain tiff has failed to m ake an y showin g on an y of the Daubert factors, th e Court gran ts Defen dan t’s Motion . Accordin gly, for the purposes of summary judgmen t, th e Court will disregard Plain tiff’s statemen ts regardin g the ceilin g fan as the origin of the fire. II. MOTION FOR SU MMARY JU D GMEN T A. SU MMARY JU D GMEN T STAN D ARD Pursuan t to Fed. R. Civ. P. 56, sum m ary judgm en t is proper “if the pleadin gs, deposition s, answers to in terrogatories, an d admissions on file, togeth er with the affidavits, if any, sh ow th at there is n o genuine issue as to any material fact an d that the movin g party is en titled to judgmen t as a matter of law.” Celotex Corp., 477 U.S. at 322. An issue is “genuine” if the quan tum an d quality of proof necessary to support liability un der th e claim is raised. Allen v. Ty son Foods, 121 F.3d 642, 646 (11th Cir. 1997). A fact is “m aterial” if it h inges on th e substantive law at issue an d it might affect th e outcom e of the n on m ovin g party’s claim . Anderson v. Liberty Lobby , 477 U.S. 242, 248 (1986); see also Allen , 121 F.3d at 646. On a motion for summary judgmen t, the Court must view all th e eviden ce an d all factual in feren ces drawn th erefrom in th e light most favorable to th e n on m ovin g party an d determ in e whether that eviden ce could reason ably sustain a jury verdict. See Celotex Corp., 477 U.S. at 322-23. The movant bears the initial burden of sh owing that there is n o genuin e issue of material fact. Id. at 323. The m ovan t can m eet this burden by presen tin g evidence sh owin g th ere is n o dispute of material fact or by poin tin g out to 11 th e district court th at th e n on m ovin g party has failed to presen t eviden ce in support of som e elem en t of its case on which it bears the ultim ate burden of proof. Id. at 322-24. On ce the m ovan t h as m et his burden , the n onm ovin g party is required “to go beyon d the pleadin gs” an d iden tify “specific facts showin g that there is a gen uin e issue for trial.” Id. at 324. A judgmen t is appropriate “as a matter of law” when the non m ovin g party has failed to meet its burden of persuadin g th e Court on an essen tial elemen t of th e claim. See Cleveland v. Policy Mgm t Sy s. Corp., 526 U.S. 795, 80 4 (1999); Celotex, 477 U.S. at 323. To avoid sum m ary judgm en t, the n on movin g party must do m ore than sum m arily den y the allegation s or ‘show that there is some metaphysical doubt as to the material facts.” Matsuhita Elec. In dus. Co. v. Zen ith Radio Corp., 418 U.S. 574, 586 (1986). B. Se ctio n 19 8 3 Cla im s Defen dan t Gourley argues th at Plain tiff’s claims for false arrest an d malicious prosecution fail because he had probable cause for th e action s he took against Plain tiff. Defen dan t Gourley argues th at, altern atively, even if he lacked probable cause for th e action s h e took, h e is en titled to qualified immun ity because the facts an d circumstan ces are such that h e reason ably could have believed th at probable cause existed. In opposition to Defen dan t’s motion for summ ary judgmen t, Plain tiff argues that none of Defendan t Gourley’s suspicions, theories, an d conjectures were supported by an y eviden ce an d thus, he did n ot have probable cause, arguable or actual, for his action s. Th e Court will address each of these con ten tions in turn . 1. Fa ls e Ar r e s t Plain tiff alleges false arrest in violation of h is Fourth Am endm en t rights, pursuan t to 42 U.S.C. § 1983, again st Defen dan t Gourley. An arrest made without probable cause violates the Fourth Am endm en t an d provides a basis for a Section 1983 12 action . Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996). Plain tiff h as the burden of establishin g the absen ce of probable cause to succeed on a § 1983 claim . Ran kin v. Evans, 133 F.3d 1425, 1436 (11th Cir. 1998). Defeatin g a defen dan t officer’s foun dation for probable cause is a heavy burden for a Plain tiff. The Supreme Court has foun d th at “[p]robable cause requires on ly a probability or substantial chan ce of crim inal activity, n ot an actual sh owin g of such activity.” Illin ois v. Gates, 462 U.S. 213, 245 n .13 (1983). To determ in e if there was probable cause for the arrest, a Court assesses wh eth er “th e facts an d circum stan ces with in th e officer’s kn owledge, of which h e h as reason ably trustworthy in formation , would cause a pruden t person to believe, un der the circum stan ces sh own , th at th e suspect has committed or is committin g an offen se.” Ortega, 85 F.3d at 1525. “Probable cause does n ot require overwhelm in gly con vin cin g eviden ce, but on ly reason ably trustworthy information .” Id. (quotation s an d citation s om itted). On ce established, th e existen ce of probable cause for the arrest con stitutes an absolute bar to a Section 1983 action for false arrest. Marx v. Gum bin ner, 90 5 F.2d 150 3, 150 5 (11th Cir. 1990 ); see also Ortega, 85 F.3d at 1525. Wh ere an officer is alleged to h ave made an arrest with out probable cause, as is the case here, th e officer “is en titled to qualified im mun ity if there was arguable probable cause for the arrest, wh ich is a more len ien t stan dard than probable cause.” Knight v. Jacobson , 30 0 F.3d 1272, 1274 (11th Cir. 20 0 2). “Arguable probable cause exists ‘wh ere reason able officers in the same circum stances an d possessing th e sam e kn owledge as th e Defen dan t could h ave believed that probable cause existed to arrest.’” Scarbrough v. My les, 245 F.3d 1299, 130 2 (11th Cir. 20 0 1). In assessin g whether arguable probable cause exists, courts employ a totality-of-the-circum stan ces an alysis. Germ an v. Sosa, 399 F. App’x 554, 555 (11th Cir. Oct. 12, 20 10 ). Im portan t to n ote is 13 that, even a mistake in judgmen t is n ot sufficien t to defeat th e application of qualified im mun ity if th e law en forcemen t official “reason ably but mistaken ly con clude[d] th at problem cause [was] presen t.” Mon toute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997) (quoting H unter v. Bry ant, 50 2 U.S. 224, 228 (1991)). “Th us, the qualified im mun ity stan dard is broad en ough to cover som e ‘m istaken judgm ent,’” an d it sh ields from liability ‘all but th e plain ly in competen t or th ose who kn owin gly violate th e law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 343 (1997)). Plain tiff argues that Defen dan t Gourley lacked probable cause, both actual and arguable, because th e arrest warran ts h e swore “were con clusory and stated n o facts.” (Doc. 34 at 3.) Plain tiff argues th at Defen dan t “h ad n o eviden ce th at Plain tiff com m itted an y crim e, including arson or crim inal dam age to property, when h e swore out th e warran ts again st Plain tiff.” This Court disagrees, an d fin ds that a review of the eviden ce relied upon by Defen dan t Gourley demon strates that probable cause existed for Plain tiff’s arrest. Burn Pattern / Dog Alert At th e start of h is physical investigation into th e fire, in th e master bedroom, wh ere th e fire damage was con cen trated, Defen dan t Gourley saw a burn pattern on the floor at th e foot of the bed. (Doc. 37 ¶ 7.) Per Defen dan t Gourley, burn pattern s often in dicate th at a fire was deliberately started. Plain tiff con ten ds that there is a disputed issue of fact as to the presence of a burn pattern because he con ten ds that there was no burn pattern at th e foot of the bed. (Doc. 38 ¶ 7.) However, the presen ce or lack th ereof of a burn pattern is n ot a subject that len ds itself to Plain tiff’s laym an opin ion . Plain tiff can n ot create a gen uin e issue of fact by offerin g testim on y that he h as n ot sh own h imself qualified to give. 14 Defen dan t Gourley also states th at Cotton alerted him to a possible acceleran t n ear th e site of the burn pattern . (Doc. 37 ¶ 8.) Cotton is train ed to detect h ydrocarbon s, includin g aceton es and alcohols, liquids often used as acceleran ts in startin g fires. (Id. ¶ 4.) Defen dan t Gourley states that Plain tiff has “repeatedly dem on strated h er reliability in detectin g hydrocarbon s.” (Doc. 33-1 at 8.) Although dog sn iffs for possible acceleran t do n ot con stitute substantive evidence of th e presen ce of an acceleran t, 4 see, e.g., Carr v. State, 267 Ga. 70 1, 70 4-70 5 (1997), for the purpose of assessin g probable cause, the Court fin ds that Defen dan t Gourley was n ot required to ign ore Cotton ’s alert as part of h is in vestigation , especially in light of the fact th at th e alert was given n ear the site of the burn pattern .5 Elim in ation of Acciden tal Causes Th e record also reflects th at Defen dan t Gourley’s in vestigation was n ot limited to the burn pattern an d his can in e’s alert to a possible acceleran t. Defen dan t Gourley also states th at h e examin ed an d evaluated multiple items—in cludin g a ceilin g fan , a space h eater, an d electrical outlets—an d determ in ed th at n on e of th ese items was th e cause of th e fire. Defen dan t Gourley’s supplemen tal report discusses in detail the reason s for 4 The Court’s inquiry at this stage is not concerned with whether there is evidence that m ight sustain a verdict; rather the Court’s inquiry is lim ited to determ ining whether there was probable cause to support Defendant Gourley’s arrest of Plaintiff for suspected arson. 5 To show an absence of probable cause, Plaintiff points out that Defendant Gourley did not wait for the GBI lab results to confirm the presence of an accelerant before swearing out the warrants against Plaintiff. (Doc. 34 at 5.) First, as demonstrated below, Defendant Gourley considered evidence in addition to the burn pattern and dog sniff. Thus, the record does not reflect that the warrants were sworn out against Plaintiff solely on the dog sniff. Second, Plaintiff provides no support for the argum ent that an officer is required to wait for the results of a lab report before executing an arrest warrant. On the contrary, the proper inquiry is whether the facts known to the officer at the tim e of the arrest provide a basis for probable cause. Case v . Eslinger, 555 F.3d 1317, 1326-27 (11th Cir. 20 09) (“A warrantless arrest without probable cause violates the Constitution and provides a basis for a section 1983 claim , but the existence of probable cause at the tim e of arrest . . . constitutes an absolute bar to a section 1983 action for false arrest.”) Moreover, the fact that the lab result cam e back negative is not sufficient to upend the Court’s probable cause finding. Im portantly, the lab report specifically stated that it did not test for all of categories of substances for which Cotton is trained to detect. See United States v . Quesada-Ram os, 429 F. App’x 90 9, 913 (11th Cir. J une 10 , 20 11) (finding that the district court did not err in allowing dog trainer to testify at trial “that his trained dog could detect accelerants not perceptible in a laboratory”). 15 elim in atin g these items as the causes of th e fire. 6 (Doc. 33-2 at 20 -21.) In the master bedroom , Defen dan t Gourley states that he observed a burn pattern leadin g from the foot of the bed to an electric space heater lyin g flat on the floor. (Id. at 20 .) Defen dan t Gourley’s examin ation revealed th at the h eater was in the “on ” position . (Id.) However, wh en h e picked the h eater up, Defen dan t Gourley observed a clean protected area of the floorin g carpet ben eath the area where the heater was lyin g down. (Id.) He then con cluded that th is was eviden ce that the h eater was off at the time of th e fire. (Id.) He ultimately tested the heater an d determin ed that when the heater is lyin g down , the heater elemen ts automatically shut off, even if the heater is set to “on .”7 (Id.) Next, Defen dan t Gourley also con sidered the ceilin g fan that he found on top of th e bed. (Id. at 4, ¶ 11(a).) Defen dan t Gourley n oted that he assessed th e ceilin g area directly over the bed where the ceilin g fan h ad been moun ted to an electrical junction box. (Id. at 21.) Defen dan t Gourley n oted th at this examin ation did n ot exhibit an y fire damage above the jun ction box; the fire damage was limited to th e area of th e ceilin g joist where the jun ction box had been mounted. (Id.) Defen dan t th en n oted that the worst fire damage was at th e bottom portion of th e fan where the fan blades h ad been Plaintiff makes much ado about the fact that Defendant Gourley’s supplem ental report was not generated until almost four months after the fire. However, Plaintiff has provided no evidence to demonstrate that the information contained in Defendant Gourley’s May 20 0 8 report did not include facts known to Defendant Gourley at the time he swore out affidavits for Plaintiff’s arrest in J anuary 20 0 8. The belated m em orializing of these facts in a report does not m ean that they did not form the basis for Defendant Gourley’s probable cause finding at the tim e of Plaintiff’s arrest. 7 Defendant Gourley ultim ately concluded that he thought the heater was turned on and then turned over to “appear to be the ignition source.” (Doc. 33-2 at 21.) Plaintiff disputes this fact by stating that the heater “was m ost likely knocked over when the ceiling fan fell.” (Doc. 34 at 5.) First, Plaintiff cannot create a genuine issue of fact with speculation, nonexpert speculation at that. Cordoba v . Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 20 0 5) (“[U]nsupported speculation ... does not m eet a party's burden of producing som e defense to a summ ary judgm ent m otion. Speculation does not create a genuine issue of fact; instead, it creates a false issue, the dem olition of which is a prim ary goal of sum m ary judgm ent.”) (additional citations om itted). Second, the fact that Defendant Gourley states that he found the fan on the bed decreases the “probability” that the fan knocked over the space heater that was on the floor. 6 16 attach ed. (Id.) Per Defen dan t Gourley, this observation : [W]as in dicative of the eviden ce [Defen dan t Gourley] would n ormally fin d wh en th e fire origin ated from the floor or bed area below the fan an d traveled upwards to th e fan th us exh ibiting worst fire damage to th e bottom portion of the fan . The fire would then con tinue to travel upwards an d over the fan with light fire damage to th e top portion of the fan . As th e fire con tinued to travel upwards it would then be seekin g oxygen burnin g up and outwards as the fire was im pin ging the area of th e electrical jun ction box the fire began to exten d through the cracks aroun d th e jun ction box an d began to burn the ceilin g joist. However th e fire n ever exten ded in to the attic area because of extin guishmen t. (Id.) Following these observations, Defendan t Gourley concluded that: [I]f the fire had origin ated at th e ceilin g fan because of an electrical malfun ction th e fan an d ceilin g area at the jun ction box would h ave exhibited worst fire damage an d th e fire would h ave exten ded in to th e attic with light to moderate fire damage at the bed an d floor area. (Id.) Defen dan t Gourley n ext examin ed the electrical outlet in to which th e space h eater was plugged. (Id.) Defen dan t Gourley n oted th at the electrical outlet appeared to have been tampered with to make it appear as if it h ad malfun ction ed an d caused th e fire. (Id.) However, because 1) Plain tiff an d h is em ployee stated that there was n o power in th e structure when they en tered, 2) the electrical cord of the heater was in good con dition , with th e heater still operation al, an d 3) Plain tiff was able to turn the main breaker back on to th e get power, Defen dan t Gourley concluded that th e electrical system function ed as it was design ed to. (Id.) Defen dan t Gourley n ext assessed an electric blan ket laid over th e foot of the bed. (Id.) Per his observation , the electric blan ket was placed un der th e edge of the heater, with the h eater placed down to appear to be the ign ition source of the fire. (Id.) However, because th e h eater automatically shut off, Defen dan t Gourley n oted that it was n ot the ignition source. (Id.) After makin g th ese observation s, Defen dan t Gourley was on ly able to con clude that “the fire origin ated with in th e area of the electric blan ket 17 th at was laid over the foot of the bed.” (Id.) Defen dan t Gourley did n ot indicate wh at caused the fire in this area. (Id.) Nevertheless, the supplemen tal report does in dicate that Defen dan t Gourley considered the potential acciden tal causes of the fire as part of h is investigation. In con sisten cies in Plain tiff’s Story about the Night of the Fire Defen dan t Gourley also relied on , as part of his probable cause fin din g, certain in con sisten cies detected in Plain tiff’s statemen t about the fire. Specifically, Defen dan t Gourley n oted th at Plain tiff stated th at h e saw sm oke in th e fron t door area wh en h e pulled up at the carport. (Doc. 33-2 at 6, ¶ 17.) Defen dan t Gourley n otes, h owever, that th e fron t door can n ot be seen from the carport. (Id.) Defen dan t Gourley also n otes that Plain tiff did n ot immediately call 911 to report th e first, in stead choosin g to make two calls to h is employee about th e fire an d waitin g for th e employee to arrive before h e (Plain tiff) fin ally called 911. As to the first in con sisten cy, Plain tiff disputes that h e ever told Defen dan t Gourley that he saw sm oke before he en tered the house. (Doc. 34-1 at 3.) Plain tiff does n ot dispute the fact that he did n ot immediately call 911. (Id. at 4.) Even if th e Court con siders the issue regardin g whether Plain tiff saw sm oke to be “disputed,” the Court fin ds th at, wh en con sidered together, the burn pattern , Cotton ’s alert to an acceleran t in the area of the burn pattern , th e elim in ation of an y acciden tal causes, an d the delay in callin g 911, all support a fin din g that probable cause existed for Plain tiff’s arrest. Financial Motives Moreover, Defen dan t Gourley con sidered Plain tiff’s fin an cial motives, a fact that Plain tiff has n ot sufficien tly disputed. In his affidavit, Defen dan t Gourley n oted th at Plain tiff an d his wife Ms. Harris were divorcing, an d Ms. Harris was expected to get title 18 to th e h ouse. (Doc. 33-2 at 7-8, ¶ 20 (1).) Defen dan t Gourley also n oted th at the h ouse was facin g foreclosure because of Ms. H arris’s ban kruptcy an d other fin an cial difficulties. (Id.) Per Defen dan t Gourley, Plain tiff, who was experien cin g fin ancial difficulties, n eeded several thousand dollars to make the mortgage curren t, avoid foreclosure an d possibly purchase th e h ouse back from Ms. Harris. (Id.) In respon se to th ese assertion s, Plain tiff on ly states that Defen dan t Gourley was in formed that he (Plain tiff) was to receive th e home in th e divorce settlemen t an d th at h e (Plain tiff) “did n ot have fin an cial troubles.” (Doc. 38 at 6.) Plain tiff, h owever, does n ot respon d to the most im portan t assertion —that th e house was facin g foreclosure an d that he n eeded mon ey to avoid foreclosure and possibly purch ase the h ouse back from Ms. Harris. (Id.) Thus, Plain tiff has failed to “take th e win d out of the sails” of Defen dan t Gourley’s financial m otive th eory. Un ique Access to the H ouse Fin ally, Defen dan t Gourley con sidered Plain tiff’s un ique access to the house. Alth ough such a fact would be considered innocuous in m ost circum stan ces due to the fact that Plain tiff was the occupan t of the h ome, in the face of possible eviden ce that a fire was in ten tion ally set, the Court can see how lack of evidence of forced en try may in crease the possibility that the own er of the house was “un iquely” position ed to comm it the crim e. Th e case of Porter v. Gray , No. 0 5-231, 20 0 7 WL 464694, at *1 (W.D. Pa. Feb.1 3, 20 0 7), is in structive on h ow “unique access” can provide the basis for probable cause in an arson arrest. In Porter, the Court foun d probable cause for plain tiff’s arrest for arson , fin din g “[p]lain tiff’s access to the Property [to be] particularly significan t in ligh t of the fact that th e fire origin ated in side the h ouse, th e Property was secure at th e time the fire was discovered, an d there were n o sign s of forced en try.” Here, too, th e 19 Court does n ot fin d th at Defen dan t Gourley was required to completely ign ore, as part of his in vestigation , the fact that the fire origin ated in side of the house, there was a lack of eviden ce sh owin g that the fire was caused acciden tally, there were n o sign s of forced en try to th e house, an d Plain tiff was on e of only two in dividuals with a key to th e house, th e oth er key h older h avin g an established alibi. Other Evidence Th ough it does n ot chan ge th e Court’s overall an alysis of the presen ce of probable cause, the Court does n ote that it agrees with Plain tiff that some of Defen dan t Gourley’s eviden ce of suspected arson —1) pool table (th e Court agrees with Plain tiff th at plastic over a pool table would serve as n o protection in the even t of a fire) an d 2) two prior fires (th ere is n o eviden ce to con n ect Plain tiff to these fires; in fact, th e evidence in dicates that the properties were occupied by ten an ts at the relevan t times an d that the first fire was caused by ten an t-error an d the secon d, by a sh ort circuit in a ten an t’s dryer)—do n ot add to a fin din g of probable cause. However, th e Court does n ot fin d th at th ese eviden tiary con cern s are of such sign ifican ce th at th ey outweigh th e in crim in atin g eviden ce. Porter, 20 0 7 WL 464694, at *17 (gran tin g sum m ary judgm en t in favor of arrestin g officer because “[t]he two most significan t pieces of exculpatory in formation , . . . wh en weighed again st th e in crim in atin g eviden ce, [did] n ot n egate probable cause”). More to th e poin t, th e question is n ot whether all of Defen dan t’s eviden ce poin ts to probable cause but wh eth er th ere is adequate eviden ce otherwise to support a fin din g of probable cause. Accordin gly, after reviewin g the eviden ce, the Court can n ot say that all other eviden ce, when considered together, leads to a fin din g th at probable cause did n ot exist for Plain tiff’s arrest. Dahl v. Holley , 312 F.3d 1228, 1234 (11th Cir. 20 0 2) (“[A]rrestin g 20 officers, in decidin g wh eth er probable cause exists, are n ot required to sift through con flictin g evidence or resolve issues of credibility, so lon g as th e totality of the circum stan ces presen t a sufficien t basis for believin g th at an offen se has been com m itted.”) Th at Defen dan t Gourley n ever precisely stated what he believes caused the fire also does n ot chan ge th e Court’s fin din g. (Doc. 34 at 5; see also Doc. 33-1 at 2.) As th e Court n oted at the outset of its an alysis, “probable cause requires on ly a probability or substan tial chance of crim in al activity, not an actual show in g of such activity .” Case, 555 F.3d at 1327 (quotin g Illin ois, 462 U.S. at 245 n .13). Here, Defen dan t Gourley has presen ted eviden ce to dem on strate that h e relied on 1) th e presen ce of a burn pattern , 2) an alert to a possible acceleran t by a train ed detection can in e at th e site of th e burn pattern , 3) the elim in ation of poten tial acciden tal causes, an d 4) Plain tiff’s motives for settin g the fire, as the foundation for his belief th at there existed probable cause to arrest Plain tiff. Th e Court fin ds that, even in th e absen ce of the proverbial “smokin g gun ,” i.e., an iden tifiable, con clusive cause of the fire, th ese factors are sufficien t to support Defen dan t Gourley’s con clusion that there was a “probability or substan tial ch ance” th at th e fire was in ten tion ally set. In Georgia, circum stan tial eviden ce can even sustain a conviction for arson. Carter v . State, 237 Ga. App. 70 3, 70 6 (1999) (citin g Bragg v. state, 175 Ga. App. 640 , 641 (1985)); see e.g., W alker v. State, 193 Ga. App. 10 0 , 10 0 (1989) (affirmin g arson conviction in case where an unusual burn pattern was detected, n o source of ign ition could be determin ed, an d the burn materials tested by the lab failed to iden tify an acceleran t). The Court fin ds th at it would be coun terin tuitive to con clude that an officer is n ot en titled to reason ably rely on circum stan tial eviden ce, as sh own here, in decidin g whether to effectuate an arrest for 21 arson . Accordin gly, th e Court finds th at Plain tiff has failed to presen t evidence demon stratin g th at In vestigator lacked probable cause to execute warran ts for Plain tiff’s arrest. Thus, the Court finds that Defen dant is en titled to summary judgmen t as to Plain tiff’s false arrest claim.8 2. M a licio u s Pr o s e cu t io n In his brief in opposition to summary judgmen t, Plain tiff does n ot address the argumen t th at Defen dan t Gourley is en titled to summary judgmen t as to his malicious prosecution claim. Neverth eless, the Court agrees that th is claim fails as a matter of law. To establish a federal malicious prosecution claim un der § 1983, a Plain tiff must prove (1) the elemen ts of th e common law tort of m alicious prosecution , an d (2) a violation of his Fourth Am en dm en t right to be free from un reason able seizures. W ood v. Kesler, 323 F.3d 8 72, 8 8 1 (11th Cir.20 0 3), cert. denied, 540 U.S. 8 79 (20 0 3). Th e Georgia tort of malicious prosecution h as th e followin g elemen ts: (1) prosecution for a crim in al offen se; (2) un der a valid warran t or accusation or summons; (3) termin ation of th e prosecution in favor of the Plaintiff; (4) m alice in the institution and m aintenance of the proceedin gs; (5) lack of probable cause for the proceedin gs; an d (6) damage to th e Plain tiff. Com m ercial Plastics & Supply Corp. v . Molen , 355 S.E.2d 8 6, 8 7 (Ga.App.198 7). Here, th e on ly action s that in volved Defen dan t Gourley post Plain tiff’s arrest were Defen dan t Gourley’s receipt of th e lab results and Defen dan t Gourley’s testim on y before the gran d jury. Regardin g th e latter, the Court has already determin ed that 8 To be clear, though the Court is granting sum m ary judgm ent on the m ore restrictive actual probable cause standard, Plaintiff’s claim would still fail on qualified immunity grounds because, on these facts, Defendant Gourley could have reasonably believed that probable cause existed for arresting Plaintiff. 22 Defendan t Gourley is im mune from section 198 3 liability regarding his testim on y before the gran d jury. (Doc. 22 at 15 n .9.) As to the receipt of the lab report, th e Court h as already con cluded th at th e receipt of the negative lab results was n ot sufficien t for n egatin g th e con clusion that there existed probable cause to arrest Plain tiff. (See id. n .3.) As an exten sion of this findin g, the Court finds that Plain tiff has n ot shown that the n egative test result were, ipso facto, sufficien t to n egate Defen dan t Gourley’s probable cause for allowin g th e prosecution of Plain tiff to con tinue. Defen dan t Gourley poin ted out th at th e GBI lab report specifically stated th at “[t]he procedure employed does n ot detect th e presen ce of ligh t volatiles such as certain alcohols and aceton e”—substances the undisputed facts demon strate that Cotton is train ed to detect. (Doc. 33-2 at 13; Doc. 37 ¶ 4.) Therefore, alth ough the report is n ot “irrelevan t,” as Defen dan t Gourley admits, the Court does n ot fin d that Plain tiff h as met h is burden of showin g th at th e lab report sufficien tly decreased the probable cause that was already in existen ce. See, e.g., Kjellsen v. Mills, 517 F.3d 1232, 1238 (11th Cir. 20 0 8 ) (con cludin g th at DUI re-test results were insufficien t to later n egate in itial probable cause for th e purpose of statin g a claim for malicious prosecution ). Not to men tion , th e fact th at the gran d jury return ed th e indictmen t even after the lab results tested n egative for th e acceleran t is prim a facie eviden ce that probable cause existed for the prosecution. Kelly v. Sern a, 87 F.3d 1235, 1241 (11th Cir. 1996). As argued by Defen dan t Gourley, Plain tiff has failed to rebut this presumption . Accordin gly, Plain tiff h as failed to sh ow that th ere was a “lack of probable cause” for the con tinuation of his prosecution . Th erefore, Defen dan t Gourley is also en titled to summary judgmen t as to Plain tiff’s m alicious prosecution claim . 23 Simply put, Plain tiff has failed to presen t eviden ce sh owin g th at probable cause did n ot exist for th e actions taken against him by Defen dan t Gourley. Plain tiff has also failed to proffer an y facts showin g that his constitution al rights were violated. Thus, at a min imum, Plain tiff has failed to sufficien tly show that Defen dan t Gourley would n ot be en titled to qualified im mun ity as to an y of his section 1983 claim s. III. CON CLU SION For the aforemen tion ed reason s, Defen dan t’s Motion to Exclude “Expert” Testim on y of Plain tiff (Doc. 35) an d Motion for Sum m ary J udgm en t (Doc. 33) are GRAN TED . It is hereby ORD ERED AND AD JU D GED that Plain tiff shall take n othin g by his Complain t (Doc. 1), an d JU D GMEN T sh all be en tered in favor of Defen dan t. SO ORD ERED , th is 27th day of March, 20 13. / s/ W. Louis Sands TH E H ON ORABLE W . LOU IS SAN D S, U N ITED STATES D ISTRICT COU RT 24
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