United States District Court, E.D. North Carolina, Western Division
C. DEVER III, Chief United States District Judge
March 16, 2016, in Wilson County Superior Court, Wesley Leon
Bethea ("Bethea" or "plaintiff') sued the
City of Wilson, the Wilson Police Department, and nine of its
officers. See [D.E. 3-1] 71-76. On April 15, 2016,
defendants removed the action to this court [D.E. 3]. On
April 4, 2016, in the United States District Court for the
Middle District of North Carolina, Bethea filed a complaint
against the City of Wilson, the Wilson Police Department, and
two officers, which that court transferred to this district
on May 16, 2016. See Compl. & Order, Bethea v.
Ellis, No. 5:16-CV-259-D, [D.E. 2, 6] (E.D. N.C. ); 28
U.S.C. § 1406(a).
September 16, 2016, the court consolidated the two cases and
directed Bethea to file a single amended complaint [D.E. 32].
On October 4, 2016, Bethea filed his amended complaint [D.E.
33]. On October 19, 2016, all defendants moved to dismiss the
complaint under Federal Rules of Civil Procedure 12(b)(2),
(5), and (6) [D.E. 36]. On June 7, 2017, the court granted in
part defendants' motion to dismiss, and dismissed
plaintiffs' claims against all defendants except Ellis
and Corprew [D.E. 66]. The parties have filed cross-motions
for summary judgment [D.E. 43, 57].
explained below, the court grants defendants' motion for
summary judgment, and denies plaintiffs
complaint concerns a criminal prosecution against him in
Wilson County Superior Court. See Am. Compl. [D.E. 33] 8. On
August 5, 2010, defendant Ellis, a detective with the Wilson
Police Department ("WPD"), presented a search
warrant to a magistrate for Bethea's residence. See Am.
Compl. [D.E. 33] 8; Pl.'s Mot Summ. J., Ex. D [D.E. 43-4]
4-5 (copy of search warrant); Defts.' Mot. Summ. J., Ex.
C [D.E. 46-2] 201-05 (application for search warrant). Ellis
submitted an affidavit in support of the search warrant,
stating that he had used a confidential informant to conduct
"several controlled purchases of cocaine... from
[Bethea's] residence." Pl.'s Mot. Summ. J., Ex.
D [D.E. 43-4] 4; Defts.' Mot. Summ. J., Ex. C [D.E. 46-2]
203. Ellis also stated that Bethea's "reputation is
poor in that he is reported to violate the criminal law of
our state, particularly by selling controlled substances,
" noted previous criminal charges from 2008, 2004, and
1989, and stated that Bethea was "convicted of several
felonies including breaking and entering and second degree
burglary in the 1990's and served several years in prison
as a result of those convictions." Pl.'s Mot. Summ.
J., Ex. D [D.E. 43-4] 4-5; Defts.' Mot. Summ. J., Ex. C
[D.E. 46-2] 203-04. Defendant Corprew assisted Ellis in
making the controlled buys, but did not assist Ellis in
writing the affidavit for the search warrant. Defts.'
Mot. Summ. J., Ex. B [D.E. 46-2] 55-62. The magistrate signed
the search warrant. Pl.'s Mot. Summ. J., Ex. D [D.E.
43-4] 5; Defts.' Mot. Summ. J., Ex. C [D.E. 46-2] 205.
August 5, 2010, Ellis, defendant Corprew, "and other
various members of the Wilson Police Department"
executed the search warrant. Am. Compl. [D.E. 33] 8; see
Defts.' Mot. Summ. J., Exs. B [D.E. 46-2] 30-31, 60-64, G
[D.E. 46-2] 211. OnFebruary 7, 2011, a grand jury indicted
Bethea for trafficking in cocaine by possession in violation
of N.C. Gen. Stat. § 90-95(h) based on evidence seized
from Bethea's home during the search. See Am. Compl.
[D.E. 33] 8; Pl.'s Mot. Summ. J., Ex. A [D.E. 43-1] 2
(copy of indictment indicating offense date of August 5,
2010). At trial, Bethea moved to suppress the evidence on the
ground that Ellis's affidavit in support of the search
warrant contained false information. See Pl.'s Mot. Summ.
J., Ex. D [D.E. 43-4] 2 (copy of state court order);
Defts.' Mot. Summ. J., Ex. G [D.E. 46-2] 211-14 (copy of
motion to suppress). The trial court held a hearing and
agreed with Bethea that certain statements in Ellis's
affidavit were false, but concluded that the false statements
"were not included in the affidavit intentionally and
knowingly, in bad faith, or with reckless disregard for the
truth, " and "were not necessary to the finding of
probable cause for the issuance of the search warrant."
Pl.'s Mot. Summ. J., Ex. D [D.E. 43-4] 3; see Defts.'
Mot. Summ. J., Ex. B [D.E. 46-2] 18-105 (transcript of
suppression hearing). Thus, the trial court denied the motion
to suppress. Id. On March 5, 2013, the jury found
Bethea not guilty of the charges in the indictment. See
Pl.'s Mot. Summ. J., Ex. A [D.E. 43-1] 3 (copy of
verdict); Defts.' Mot. Summ. J., Ex. A [D.E. 46-2] 2
contends that Ellis "had sheer ill will toward
PlaintiffQ" based on a 2008 encounter in which he
"was stopped for a traffic violation, taken to the local
police station instead of the magistrate as normally done and
subsequently strip-searched" by Ellis and Corprew
under protest. Pl.'s Mot. Summ. J. [D.E. 43] 2; see Pl.
Dep. 96, 136. In January 2009, the charges against Bethea
arising out of the incident were dismissed. See Pl.'s
Mot. Summ. J. 2 & Ex. F [D.E. 43-6] 2 (criminal
information screen). Bethea "made a formal complaint of
which Sgt. Reginald Branch, one of the Defendants in this
civil case, was the investigating officer. He found in favor
of [Ellis and Corprew]." Pl.'sMot. Summ. J.2. Bethea
also contends that Ellis did not comply with WPD policy
requiring certain documentation for confidential informants.
See Id. at 2-3 & Ex. B [D.E. 43-2] (copy of WPD
policy on handling confidential sources of information);
c£ Defts.' Mot. Summ. J., Ex. J [D.E. 46-2] 225-231
(redacted confidential informant documentation).
judgment is appropriate when, after reviewing the record as a
whole, no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby. Inc.,
477 U.S. 242, 247-48 (1986). The party seeking summary
judgment initially must demonstrate the absence of a genuine
issue of material fact or the absence of evidence to support
the nonmoving parry's case. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Once the moving party
has met its burden, the nonmoving party may not rest on the
allegations or denials in its pleading, Anderson,
477 U.S. at 248-49, but "must come forward with specific
facts showing that there is a genuine issue for trial."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (emphasis and quotation omitted). A
trial court reviewing a motion for summary judgment should
determine whether a genuine issue of material fact exists for
trial. Anderson. 477 U.S. at 249. In making this
determination, the court must view the evidence and the
inferences drawn therefrom in the light most favorable to the
nonmoving party. Scott v. Harris, 550 U.S. 372, 378
(2007). "When cross-motions for summary judgment are
before a court, the court examines each motion separately,
employing the familiar standard under Rule 56 of the Federal
Rules of Civil Procedure." Desmond v. PNGI Charles
Town Gaming LLC., 630 F.3d 351, 354 (4th Cir. 2011).
remaining claim is for malicious prosecution. See Am. Compl.
"Allegations that an arrest made pursuant to a warrant
was not supported by probable cause, or claims seeking
damages for the period after legal process issued"-e.g.,
post-indictment or arraignment-are considered a § 1983
malicious prosecution claim. Brooks v. City of
Winston-Salem, 85 F.3d 178, 182 (4th Cir. 1996). Such a
claim "is properly understood as a Fourth Amendment
claim for unreasonable seizure which incorporates certain
elements of the common law tort." Evans v.
Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (quoting
Lambert v. Williams, 223 F.3d 257, 261 (4th Cir.
2000)). To succeed, a plaintiff must show that "the
defendant (1) caused (2) a seizure of the plaintiff pursuant
to legal process unsupported by probable cause, and (3)
criminal proceedings terminated in the plaintiffs
Humbert v. Mayor & City Council of Baltimore
City, No. 15-1768, 2017 WL 3366349, at *4 (4th Cir. Aug.
7, 2017) (alterations omitted).
parties focus on whether Ellis's affidavit contained
material false statements that, if excluded, defeated the
existence of probable cause. See Mem. Supp.
Defts.' Mot. Summ. J. 15-20; PI.' s Mot. Summ. J.
3-4. In order to succeed on this claim, Bethea must first
show "that defendants knowingly and intentionally or
with a reckless disregard for the truth either made false
statements in their affidavits or omitted facts from those
affidavits, thus rendering the affidavits misleading."
Evans, 703 F.3d at 650 (quotations omitted); see
Franks v Delaware,438 U.S. 154, 155-56 (1978);
Miller v. Prince George's Cty.,475 U.S. 621,
627 (4th Cir. 2007). Bethea must "make a substantial
preliminary showing" of intentional or reckless
falsehood in the affidavit; "[a]llegations of negligence
or innocent mistake are insufficient" to demonstrate a
constitutional violation. Franks, 438 U.S. at
155-56, 171. "Second, [Bethea] must demonstrate that
those false statements or omissions are material, that ...