Wright v. Fairfax County et al, No. 1:2009cv00949 - Document 47 (E.D. Va. 2010)

Court Description: MEMORANDUM OPINION re: 37 Motion For Summary Judgment. (See Accompanying Memorandum Opinion For Details). Signed by District Judge Claude M. Hilton on 6/22/10. (nhall)

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IN THE UNITED FOR THE STATES DISTRICT EASTERN DISTRICT OF COURT VIRGINIA Alexandria Division ADONIS WRIGHT, Plaintiff, Civil Action No.# V. FAIRFAX COUNTY, et 01:09-cv-949 al. Defendants. MEMORANDUM Defendants, Tuggle Fairfax County, (Detective Tuggle), (Officer Shifflett), of summary judgment Complaint Virginia (County), and Officer Steven C. by counsel, in their filed against OPINION have moved this favor on Gary S. Shifflett Court for entry the remaining counts them by the Plaintiff, in the Adonis Wright ("Plaintiff"). On August County, 21, Detective 2009, Plaintiff Tuggle, Officer Shifflett, Fairfax County police officers. claims against the County. filed a Complaint against Counts Counts VI I the and other unnamed through V set through X set forth forth claims against Detective Tuggle and Officer Shifflett in both their official 16, Court and individual capacities. granted the Defendants' Fed. On October R. Civ. P. 2009, 12(b)(6) this motions and dismissed Counts II, Complaint. only claims Counts I, Thus, VI, the III, IV, V, I, and X of the in the Complaint are and VIII. 42 U.S.C. Shifflett have moved Count VI, 42 state IX, remaining The County has moved the Court on Count VII, U.S.C. § 1983, the Court § 1983, to grant it summary judgment and Detective Tuggle and Officer grant them summary judgment and Count VIII, law for malicious prosecution for the cause on of action under reasons set forth herein. Detective Tuggle as a detective to is a County police the Mount Vernon District the Alexandria section of Shifflett County, is and was County assigned as August the County, located in in August 2007. formerly a police Officer officer with the a patrol officer to the Mount Vernon District located in the Alexandria section of the County, in 2007. On August Carmen Vest 19, 2007, ("Vest"), in Fairfax County. sometime between at Plaintiff 8402 Eureka Court, On that date, 8:00 p.m. lived with his Plaintiff and 9:00 p.m. recall what he was wearing on August On August was Station, assigned currently a police officer with Prince William Virginia, Station, officer and was 19, received by the 2007, at 19, approximately Alexandria, Virginia, left his residence Plaintiff does not 2007. 9:11 p.m., Fairfax County Department -2- girlfriend, of a Public 911 call Safety Communications male, ("DPSC") beat him up, vicinity of section of Pole two black males Road and Del tee The Norte all black and having dreadlocks. the second black male was towards Both the Alexandria with a dark shirt over described as dressed in suspects were last seen Francisco Way in the Alexandria section County. Both suspects were described as built. in shirt with gray pants shoulders. of Court in the The first black male was described as his heading on foot jumped a Hispanic and took his wallet and cell phone the County. wearing a white that The call to saw the victim of 911 six was made by M.B., feet one tall of and of average the witnesses who the robbery, Juan Gomez ("Gomez"), suspects past a community pool located at 5601 Alexandria section of Fairfax by DPSC. message the Shifflett from DPSC from the Pole Road in the County. County police officers were Officer chasing the immediately dispatched was on patrol duty when he Computer-Aided Dispatch received a ("CAD") on the mobile computer terminal in his cruiser to respond to the reported robbery at approximately 9:12 p.m. one of the victim, first officers Gomez. to arrive Officer Shifflett was at the Officer Shifflett was scene advised that Gomez was accosted from behind while walking to his home, face and stomach, taken from him. and his The two wallet suspects and met with containing punched in the $6,200 then fled on foot, -3- in cash was making a the right onto Del Norte Court, playgrounds, ran past the clubhouse, and then towards Sergeant Robert the dead-end of through the Francisco Way. Blakley was also on patrol duty in his police cruiser on August 19, 2007, when he received notification that a robbery had just occurred in the Mount Vernon District. part of that notification, for robbery suspects computer terminal suspects jeans, as Sergeant Blakley received a lookout over the radio and the in his cruiser. two black males, The as a black male wearing a white At shoulders, and blue The CAD on the mobile lookout described the one wearing a black and having dread locks. over his blue described with a black tee shirt jeans. on August 19, 2007, Blakley observed a black male with dread locks, jeans, shirt, second suspect was tee shirt, approximately 9:21 p.m., shirt and blue As in the vicinity of just received notification of at the 9:14 p.m. Sergeant wearing a black robbery which he had Sergeant Blakley stopped the person at the intersection of Sacramento Drive and Francisco Way, and he identified himself ("Plaintiff"). Sergeant Blakley conducted a pat down for weapons, interviewed Plaintiff, was as Adonis Wright and then contacted Officer Shifflett, still with the victim of the robbery, Gomez. Plaintiff advised Sergeant Blakley that he had just left his house, he lived with his girlfriend, and that he was where on his way to meet his brother who was going to pick him up in a car. -4- who While Sergeant Blakley spoke with Plaintiff and his brother, walked within 30 to come Deontez Wright, feet of Sergeant Blakley but refused his request closer. Sergeant Blakley planned to detain Deontez Wright because he matched the description of the second suspect black male wearing a white tee shirt, with a black tee shirt over his shoulders, and blue jeans. could detain Deontez Wright, victim, Gomez, to who robbed him. Section to sure Because Sergeant Blakley made night but illuminate 89 percent that Officer Shifflett used his the decision not leave. for the persons 100 percent positive, to arrest to a Criminal further However, The victim stated Plaintiff was one of the victim was not detective a before Sergeant Blakley Plaintiff. turn the matter over ("CIS") that he was Officer Shifflett drove up with the in his police cruiser. cruiser's spotlight that he was However, in Plaintiff Investigations investigation and was then free to Plaintiff his residence on an outstanding warrant was that Plaintiff later arrested at from the City of Alexandria. On August investigate 20, the robbery of Detective Tuggle CAD Event History took for and determined that for August 19, 2007, 2007. the Detective Tuggle was assigned to Gomez. As part of his following steps on that the patrol area there were date. He ran a in which Gomez was no other He determined that -5- investigation, similar events robbed reported there were no relevant Mobile Video Recorders that responded to determined that the robbery. there were no reported on August On August 21, Gomez. ("MVRs") 19, to conduct had a friend with him who was Gomez advised that towards cases and similar robbery cases limited English, chose Dollar grocery reviewed CIS Detective Tuggle met with the victim, spoke the He the police cruisers 2007. 2007, Because Gomez from any of interview in Spanish. on August 19, store carrying Pole Road by way of fluent Detective Tuggle Additionally, Gomez in both English and Spanish. 2007, a bag of he had left groceries Sacramento Drive. the Bottom and headed Gomez passed Francisco Way and walked between houses towards his home at Del Norte Court. At 8406 Del Norte Court he was three black males wearing dark clothing. the black males short hair. had longer dread Two of locks, He confronted by recalled that one of and the other the males began punching him while held him in a head lock from behind. One of 8412 the males two had the other reached into Gomez's pocket and took his wallet which contained $6,000 cash. All and Gomez at the then began running towards ran after them. swimming pool one minute his three males after the Gomez robbery had taken place. reiterated that he was Plaintiff Francisco Way then encountered several people a very short distance away, identification of in on August 8 9 percent -6- sure 19, that approximately When asked about 2007, Gomez Plaintiff was one of the people who had robbed him. Also as part of his investigation, Detective Tuggle met with Sergeant Blakley on August 21, who advised Detective Tuggle about his after the robbery occurred on August On August the 2007, stop of Plaintiff shortly- 19, 2007. Detective Tuggle conducted a canvass of surrounding residences near the scene of result learned the names of and E.A., Road. who were at Only one of good look at that 22, she would be On August 22, up with M.B. at the the able swimming pool M.B., suspects, robbery and as a the located at Pole she got a a photo and lineup. Detective Tuggle conducted a photo the swimming pool located at 5601 Detective Tuggle six a time, individual photographs, up form with signatures. one One of Department of Motor Vehicles the photographs of at 05-022, showed M.B. and completed a the six photographs was ("DMV") photo of line Pole Road in Physical and Photographic Lineups. photograph as being one B.D., one with dread locks, accordance with Fairfax County Police Department SOP looked at M.B., 5601 advised that to pick him out of 2007, the three possible witnesses, the witnesses, one of 2007, line a Plaintiff. M.B. and positively identified Plaintiff's the individuals the pool while being chased by Gomez, she on August saw running past 19, 2007, and indicated the same by signing her name on Plaintiff's photograph as well as on the Sequential Based upon Gomez's Lineup Worksheet. identification to Officer Shifflett, -7- Sergeant Blakley, and Detective Tuggle that Gomez was 89 percent sure that Plaintiff was one of the persons who robbed him on August 19, 2007, that the robbery occurred within Plaintiff's residence at 8402 Eureka Court, 30 feet of that Plaintiff was seen in the area by patrol officers shortly after the robbery had taken place and fit the physical and clothing description of one of the robbers, as one of identified Plaintiff's photograph the individuals who she saw being chased by Gomez on August 19, G. and that M.B. 2007, Detective Tuggle appeared before Magistrate Brad Doane and after swearing under oath obtained a felony warrant for Plaintiff's arrest Code Ann. § 18.2-58 for robbery of Gomez on August 23, in violation of Va. 2007. Plaintiff was arrested at his residence at on August 23, Woodcock, and served with the warrant on August a.m. 2007, After he was 8402 Eureka Court by Officer Shifflett and Officer Matthew arrested, County police detective, Plaintiff was Alden Goodger. 24, 2007, at 1:32 interviewed by another Plaintiff was advised of his Miranda rights after which he signed a Fairfax County Police Department Warning and Consent As a result of his form. investigation, Detective Tuggle prepared an Incident Time Line superimposed over a Google Map of where Plaintiff lived, three witnesses observed Gomez the pool, where the robbery occurred, chasing two of the the area where the suspects past and where Sergeant Blakley conducted the subject -8- stop of Plaintiff. Soon after he was arrested, Plaintiff was brought before a judge of the Fairfax County General District Court (general district court), On August 27, 2007, arraigned, Detective Tuggle and appointed counsel. interviewed Plaintiff's girlfriend, at the Mount Vernon District Station. Vest, Vest advised Detective Tuggle that Plaintiff had left 8402 Eureka Court at approximately 9:00 p.m. Tuggle on August 19, 2007. On September 4, 2007, Detective interviewed Plaintiff at the Fairfax County Adult Detention Center with Plaintiff's court-appointed counsel, Dennis, present. A preliminary hearing was scheduled to be heard in the general district court on November 5, Tuggle, Gomez, hearing was and M.B. appeared. However, continued until December 5, On December 5, 2007, On that date, the only evidence that Plaintiff has for the preliminary on August 2007, night. the The only evidence claim that it was the nolle prosequi on Plaintiff's attorney, in support of his identify him as one of is and M.B. the hearing on December 5, Gomez did not 19, Gomez, robbery charge was was present at and Detective 2007. the motion of the Commonwealth's Attorney. Kelly Dennis, 2 007, the preliminary Detective Tuggle, appeared in the general district court hearing. Kelly fact that 2007. The claim that the persons who robbed him that he was not Plaintiff has arrested that in support of his intent of persons employed by the County to -9- never bring the case to trial is that the case was nolle prosequi. The Police Department has issued General Orders that all sworn officers of the Police Department are required to follow. The General Orders are statements of policy and procedure dealing with major operational and administrative areas. Action taken by a police officer not in conformance with the General Orders may be grounds for disciplinary action. General Order 540.2, Police Citizen Contact, guidelines regarding voluntary field contacts, stops, frisks and protective person during a lawful Arrest Procedures, the investigative searches which extend beyond the investigative stop. governs establishes the arrest General Order 601, procedures that all police officers are required to follow when making an arrest, including that a felony arrest may be effected if probable cause exists, that is, "facts and circumstances which, rational inferences therefrom, believe taken together with would lead a prudent person to that a crime is being or has been committed and that a particular person committed it." Plaintiff offers no evidence that any of officers violated his justifies the entry of Plaintiff's Heller. 475 federal Constitutional rights. summary judgment claim under 42 U.S. 796, the County's 799 U.S.C. § (1986); -10- That alone in favor of the County on 1983. City of Temkin v. Los Angeles v. Frederick County Comm'rs. 945 F.2d 716, 724 (4th Cir. 1991). If a constitutional violation can be shown liability cannot be placed on the County. Cox v. County of Prince William, 2001), quoting Hinkle v. {4th Cir. City of 249 F.3d 295, Clarksburg, 301 81 (4th Cir. F.3d 416, 420 1996). Even if Detective Tuggle or Officer Shifflett violated any constitutional right of Plaintiff, against the County. In this municipal liability under Jordan v. Jackson, 15 liability will not theory of 436 U.S. 692 superior. (1978). § 1983. Oklahoma v. McDaniel. 824 It is Brown, clear that identified Plaintiff 520 Dept. of is the Social Servs.. able to practice, or cause of the can there be municipal the County Comm'rs of Bryan U.S. 1385-87 Section 1983 entities on the proximate rights for proof of Jordan ex rel. 1994). an official policy, Fayetteville v. to deprive citizens of never Monell v. Board of F.2d 1380, sub nom City of (4th Cir. Only if a plaintiff the plaintiff's liability under County. 338 the municipality that was deprivation of the requirements 1983 are stringent. F.3d 333, establish the existence of custom of failed to state a claim lie against governmental respondeat 658, § Circuit he has 397 (1997); (4th Cir. Spell. 484 Spell 1987); U.S. v. cert. 1027 denied (1998). there is no official policy of the County their constitutional rights and Plaintiff such a policy when requested in discovery. can only prevail by showing that his alleged -11- Thus, deprivation of his constitutional by a practice or custom of are established by rights was proximately caused the County. "persistent and widespread practices" officials who are authorized to make F.2d at 1386. must be "so permanent and well law." Such practices, Castle v. 1998), occur have known of liable. Wolford. (citing Spell, practices Id. 1998 824 a settled as WL 766724 frequently that decisions. to have *2 Spell. 1386). the (4th Cir. At most, finding of (plurality opinion) Plaintiff has "custom" force Oct. only alleged a Tuttle, even assuming that attributable to to single which as a matter of and 471 U.S. sufficient 20, at Jordan, 471 U.S. 831 Detective 15 808, incident law cannot F.3d at 823-24 341 (1985) (concurring opinion)). Tuggle or Officer a constitutional establish a custom of right, that such deprivation the County. Plaintiff's evidence in support of his allegations Complaint in which he pursued policies, proximate cause of and of of Only when these a policy or custom. would not be the 824 the municipality knew or should Shifflett had deprived Plaintiff of of of their existence can the municipality be held (citing City of Oklahoma v. Therefore, final in order to constitute a F.2d at of unconstitutional activity, support Such practices or customs practices, the alleges that and customs unconstitutional the deprivation of his the police officers that were arrest, constitutional -12- in H 22 a direct and incarceration, rights is as follows: Plaintiff was ruled out as suspect by victim on night of incident. This is why he was let go. Police returned to plaintiff's home of residence three days later and was arrested on false accusations. Plaintiff was offered polygraph by Detective Tuggle and when plaintiff repeatedly asked to take the test he was told by Detective Tuggle that it was no longer an option. No investigation ever done regarding plaintiffs alibi. People residing with plaintiff were never questioned. Plaintiff's only evidence that he was ruled out as a suspect on the night of the robbery is based upon the not arrested on August cause 19, to arrest Plaintiff that he was 89 percent 2007. that that had robbed him minutes Blakley exercised his turned the does not 19, discretion, The case over to a CIS detective was one of fact that stated the persons Sergeant and then for further investigation claim that he was ruled out as the robbery. a Plaintiff also that while he was offered a polygraph examination by Detective Tuggle, Detective Tuggle later told Plaintiff was no longer an option. Polygraph evidence judicial proceedings Commonwealth, Supreme after Gomez released Plaintiff, suspect by the victim on the night of claims 2007, Plaintiff earlier. support Plaintiff's that he was The police officers had probable on August sure fact 278 Court has held of polygraph evidence violate the is not admissible in Virginia state courts. Va. 739, 743, 685 that a per se S.E.2d rule that 665, in Turner v. 667 against (2009). The the admissible in courts martial proceedings does not Fifth or Sixth Amendment rights of an accused to -13- it present the a defense. U.S. Fourth Circuit has v. admissible Thus, in this the circuit. fact polygraph was no 523 U.S. 303, 317. Likewise, determined that polygraph evidence because Plaintiff polygraph, Scheffer, U.S. v. Sanchez, 118 has no constitutional F.3d 192 right amount not (2007). to a that Detective Tuggle told Plaintiff longer an option cannot is a to a constitutional violation. Finally, Plaintiff's claim that his never investigated is specious, not "resolve every doubt about a suspect's guilt required to before probable cause 942 F.2d 257, 264 the only witness is at best. alibi was established." (4th Cir.1991) that interviewed was Vest, Plaintiff who was However, left 9:00 at Torchinsky v. Siwinsky. (citation omitted). Moreover, claims p.m., on August shortly after of Thus, residence. days after according to Vest, robbery occurred sometime Plaintiff's should have been interviewed several Plaintiff was arrested. their residence A law enforcement officer is 19, 2007, 9:00 p.m. she did not Plaintiff and the within 30 feet establish an alibi for Plaintiff. When asked to state in detail customs of Plaintiff the County that the policies, practices, were pursued by the officers, responded: Specifically, office law enforcement and the prosecutor's initiated and continued in a course of conduct that caused me to be incarcerated and to remain incarcerated. More specifically, it was the -14- or intent of those employed by the County to never bring the matter to trial, but rater [sic] summarily punish me by just keeping me incarcerated for a crime in which I did not commit. I was informed that I could not receive bail and was denied each time because the charge against me was that for which no bail would be given, yet a week prior to my first scheduled trial nevertheless date (November 17, 2007), I was released on my own personal recognizance. Plaintiff's only evidence intent of those trial was the fact in support of employed by the that the was nolle prosequi by the validity of Plaintiff's case did not go arrest DeFillippo, is crime 443 U.S. the appeared at general district it was the the case to trial because However, it the for which he was 31, 36 (1979). charged. Moreover, it along with the Gomez both scheduled preliminary hearing dates court. The to not dependant on whether or not cannot be disputed that Detective Tuggle, and M.B., that county to never bring Commonwealth Attorney. he actually committed the Michigan v. statement fact that the in Commonwealth's Attorney moved the general district court to nolle prosequi the robbery warrant pursuant § not to Va. Code Ann. 19.2-265.3 does establish that Detective Tuggle did not have probable cause obtain an arrest warrant Because Plaintiff has for County policy, entitled to summary judgment Plaintiff's on August failed to plead and prove an official While Plaintiff practice, on Count Complaint or custom, I of alleges and Officer Shifflett violated his -15- rights 23, 2007. the existence of the County is Plaintiff's that to Complaint. Detective Tuggle under the Fourth, Fifth, Sixth, States Constitution, claims of actions Pendleton. or unreasonable Gilmore, "The and Fourteenth Amendments false arrest analyzed as Brown v. Eighth, 249 under 42 false imprisonment seizures under 278 F.3d 362, F.3d 279, 294 Fourth Amendment probable cause." Graham v. Probable cause exists when officer's knowledge are U.S.C. 367 the § to the United 1983 based upon are properly Fourth Amendment. (4th Cir.2002), Rogers v. (4th Cir.2001). is not violated by an arrest based on Connor. the 490 facts sufficient U.S. 386, 396 (1989). and circumstances within an to warrant a prudent man in believing that the suspect had committed the offense." Ohio, 89, 91 379 U.S. than a mere convict. Moreover, Sun v. established. F.3d 429, 434 371 U.S. law enforcement Torchinsky v. Siwinsky. The demands more (4th Cir.1996) 471, 479 (1963)). officers need not resolve F.2d 257, 264 (4th Cir. clearly establish that he had probable cause Plaintiff was one of the people responsible formed Detective Tuggle's basis probable cause: 942 Gomez's is facts and circumstances known to robbing Gomez on the night of August facts cause regarding a suspect's guilt before probable cause Detective Tuggle that 81 United States. (citation omitted). believe While probable it does not require evidence sufficient to Waters. reasonable every doubt 1991) suspicion, Taylor v. (citing Wong (1964). Beck v. 19, 2007. The to for following for determining that he had identification to Officer Shifflett and -16- Sergeant Blakley that Plaintiff was one of earlier, Gomez was 8 9 percent sure that the robbery occurred within 30 area by patrol officers shortly after the robbery and fit the the robbers, that positively identified Plaintiff's photograph as being one of individuals who she saw being chased by Gomez on August 19, 2007, 21, feet of Plaintiff's that Plaintiff was seen in the physical and clothing description of one of the that the persons who had robbed him minutes residence at 84 02 Eureka Court, M.B. that and Gomez's 2007, identification to Detective Tuggle on August that he was the persons 89 percent responsible Plaintiff argues sure that Plaintiff was one of for robbing him on August that because the 19, robbery charge was nolle prosequi at the preliminary hearing on December 5, establishes that However, the fact there was no probable 2007. cause that Plaintiff was not 2007, this for his arrest. convicted of the robbery charge does not mean that Detective Tuggle and Officer Shifflett did not have probable cause to arrest Plaintiff. Not everyone who is arrested but not convicted has a cause of action for violation of 42 U.S.C. § 1983 because the Constitution does that only the guilty will be arrested. U.S. 137, 145 23, McCollan. 443 (1979). Because probable August Baker v. not guarantee 2007, cause existed for Plaintiff's arrest on Detective Tuggle and Officer Shifflett entitled to summary judgment on Plaintiff's -17- are claim against them in their individual Further, capacity under 42 the doctrine of U.S.C. officials conduct rights Callahan. 129 immunity either constitutional the 2009) time." if the 818 facts if Snider v. (citing Pearson, damages as long as person would have 815-16, 808, right or The Supreme 1983 808, 457 U.S. claim their established statutory or constitutional reasonable S.Ct. from Plaintiffs' This doctrine protects government not violate which a Fitzgerald, at 1983. from liability for civil does of § 1983. qualified immunity shields Detective Tuggle and Officer Shifflett under 42 U.S.C. § 818-19 (1982)). Pearson v. (quoting Harlow v. "Officials have qualified do not make out a violation of the right Seung Lee, 129 (2009) known. S.Ct. was 584 not F.3d at 815-16, Court has determined that a clearly established 193, 198 (4th Cir. 818-19). in the context of a § claim alleging that a police officer arrested an individual without probable cause, qualified immunity is available when an objectively reasonable officer could have concluded that a warrant for the arrest U.S. 335, 341 (1986). should issue. See Malley v. In other words, this Briggs, 475 immunity safeguards all but the patently incompetent or those officers who knowingly violate the law. Id. The Fourth Circuit has reasonableness whether there standard, elaborated upon this explaining that actually was probable cause -18- "the for objective question the is [arrest] not warrant. ¢ . , but whether an objective [police] reasonably have believed probable cause Atkins, 296 F.3d 253, 261-62 underlying this "favorable arises fact from the that (4th Cir. standard," "'[i]t enforcement officials will is in some mistakenly conclude that probable like be other officials lawful[,] at 262 [they] who act Creicrhton. 483 U.S. The undisputed 635, 2002). it facts the victim's that law reasonably but is present, held personally and here make clear for a detective at further Id. reasonableness. Plaintiff the case was as being one of While 19, 2007, stopped by assigned to Detective the Mount Vernon District investigation. to that Detective Tuggle Plaintiff was not arrested that night when he was Tuggle, . (1987)). identification of Instead, . liable.'" the persons who had robbed him on the night of August Sergeant Blakley. . (quoting Anderson v. and Officer Shifflett acted with objective Despite rationale they reasonably believe in original) 641 The Gomez v. further has explained, cases cause should not be (all modifications to exist." inevitable in ways officer could Police Station, Officer Shifflett did arrest Plaintiff by executing the arrest warrant obtained by Detective Tuggle on August 23, 2007, because there are the warrant was not valid on its face, reasonable to arrest for Officer Shifflett obtained by Detective Tuggle. -19- no allegations that it was objectively Plaintiff on a warrant Likewise, Detective Tuggle acted with objective reasonableness. On August 23, 2007, Detective Tuggle appeared before Magistrate Doane and swore under oath to the following: Gomez's identification to Officer Shifflett Sergeant Blakley [Plaintiff] was him on August that Gomez one of the 19, 2007, was 89 percent and sure that persons who had robbed that the robbery occurred within 30 feet of [Plaintiff]'s residence at 8402 Eureka Court, that [Plaintiff] was seen in the area by patrol officers shortly after the robbery and fit the physical and clothing description of one of the robbers, that M.B. identified photograph as being one of [Plaintiff]'s the individuals saw being chased by Gomez on August Gomez's 21, who 2007, she and identification to Detective Tuggle on August 2007, that [Plaintiff] he was 89 was one of robbing him on August facts, 19, 19, Magistrate Doane probable cause percent sure the persons 2007. Based upon these found that for an arrest that responsible for there to was for for robbing Gomez on August 19, [Plaintiff]'s arrest warrant issue 2007. The Fourth Circuit has sufficient to support a the attacker is finding of probable cause. Richland County Sheriff's in McKinney. a warrant based identification of primarily on the victim's recognized that Dept., F.3d 415, on two separate occasions officers Gomez 418 (4th 2005). As to three different identified Plaintiff as being one of the persons who had robbed him on August Tuggle rely upon Gomez's relied upon other facts coupled with Gomez's reasonable 431 McKinney v. 19, 2007. Id. identification of as noted above. identification, for Detective Tuggle made only did Detective Plaintiff, These to believe -20- Not it other he also facts, when objectively that he had probable cause for Plaintiff's While Detective a warrant cause under Va. to believe robbery, Tuggle 143-44 § arrested 19.2-81 because Plaintiff without he Plaintiff had committed the Detective Tuggle 137, could have Code Ann. that from a magistrate U.S. arrest. sought on August (1979), 23, the had probable felony of and obtained an arrest warrant 2007. In Baker v. Supreme Court McCollan, recognized that 443 the issuance of a facially valid warrant by a magistrate satisfies the probable pursuant the cause standard. to a warrant warrant cause as is application An officer who makes entitled to qualified immunity unless is so lacking to render official belief Mallev V. Briqqs, 475 Circuit nevertheless an arrest U.S. 335, in indicia of in its 344-345 has acknowledged probable existence unreasonable. (1986). The Fourth that merely obtaining an arrest warrant does not provide per se evidence of reasonableness, but it does raise a presumption of reasonableness. Torchinsky v. objective Cir. 1991). 942 F.2d This presumption can be rebutted well-trained officer that he Siwinski. in the defendant's if 257, position would have known should not have applied for the warrant because his for lack of probable cause. (quoting Malley, at argues (4th a reasonably application was deficient rebut 262 475 U.S. the presumption of 345). None of reasonableness in Id. the undisputed facts this case. Plaintiff that a reasonable police officer would have conducted a -21- more thorough investigation before obtaining from Magistrate Doane. failed to witness contends Plaintiff's investigate Plaintiff alibi. was his girlfriend, two reasons. Plaintiff First, left Vest. the crime Plaintiff's Plaintiff's occurred after Vest the Fourth Circuit has "did not seeking the conduct a more arrest warrant does established by the victim's at 418-419 2000), Torchinskv, 942 stated that The undisputed facts make testified that 19, the not negate cause responsible to for find that the 2007, fact the probable 214 McKinney, F.3d 535, and that an cause 431 542 F.3d (4th Cir. 264. clear that an objectively reasonable police officer could have believed that probable for thorough investigation before Arnold. F.2d at fails for Plaintiff. identification." (citing Wadkins v. only alibi argument their home on the night of August officer arrest warrant that Detective Tuggle therefore Vest did not establish an alibi Second, the Plaintiff was robbery of Gomez one of on August circumstance entitles Detective Tuggle there was the persons 19, 2007. This and Officer Shifflett to qualified immunity. Counts VIII under state as forth a claim for malicious prosecution law against their official Suits sets against Detective Tuggle capacity as individuals suits against the well as and Officer Shifflett their individual capacity. in their official County. Edwards v. -22- in capacity are the City of Qoldsboro. same 178 F.3d 231, 159, 165 244 n.8 (1985). {4th Cir. Further, 1999); Kentucky v. Graham, 473 U.S. Plaintiff has ceded that this count for malicious prosecution against the officers in their official capacity is barred by sovereign immunity. As to the malicious prosecution count in their individual capacity, Plaintiff's Complaint fails. To establish a prima facie case of malicious prosecution under Virginia law, Plaintiff must establish that his prosecution was: (1) malicious; (2) instituted by, or with the cooperation of, the defendant; (3) without probable cause; and (4) terminated in a manner not unfavorable to the plaintiff. Hudson v. Lanier, 255 Va. 330, 333, 497 S.E.2d471, 473 (1998). In a recent malicious prosecution action against a police officer, the Supreme Court of Virginia said: Actions for malicious prosecution arising from criminal proceedings are not favored in Virginia. The requirements for maintaining such actions are more stringent than those applied to other tort cases, and are imposed to encourage criminal prosecutions in appropriate cases without fear of reprisal by civil actions, criminal prosecutions being essential to the maintenance of an orderly society. Reillv v. Shepherd, 273 Va. 728, 733, 643 S.E.2d 216, 219 (2007). Probable cause in malicious prosecution actions is defined as knowledge of such a state of facts and circumstances as the belief in a reasonable mind, circumstances, he is support acting on such facts and that the plaintiff is guilty of the crime of which suspected. Va. R. & P. Co. v. -23- Klaff. 123 Va. 260, 96 S.E. 244, 246 (1918); Gaut test Pvles. 212 of probable Va. 39, is to be (1971). the time when the action complained of was 217 Va. On August charging at 23, 2007, Plaintiff with in violation of Va. provides If 394, 228 cause 41, 647 Phillips, "The v. S.E.2d at 181 S.E.2d 645, applied as of taken." Bain v. 581. Detective Tuggle obtained a warrant the robbery of Code Ann. § Gomez 18.2-58. on August That code 19, 2007, section that: any person commit robbery by partial or suffocation, or by striking or strangulation, beating, or by other violence to the person, or by assault or otherwise putting a person in fear of serious bodily harm, of firearms, or by the threat or presenting or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony and shall be punished by confinement in a state correctional facility for life or any term not less Va. than five years. Code Ann. § 18.2-58. Clearly, the facts and circumstances known to Detective Tuggle when he obtained the warrant charging Plaintiff with robbing Gomez as well that as was on August Tuggle's Tuggle 19, one of the persons 2007 based on the sworn statement. the warrant their in the mind of Magistrate Doane, Plaintiff Gomez created in Detective Tuggle's mind, Because a reasonable belief who was facts there guilty of from Detective was probable cause charging Plaintiff with robbing Gomez, and Officer Shifflett individual For these are entitled to capacity on Count VIII, reasons, the County, -24- robbing for Detective summary judgment in malicious prosecution. Detective Tuggle, and Officer Shifflett are entitled to summary judgment in their favor on Counts I, VI, and VIII of the Complaint. An appropriate order shall issue. I Alexandria, June Isl Claude M. Hilton United States District Judge Virginia 22 1, 2010 -25-

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