United States District Court, W.D. North Carolina, Statesville Division
COGBURN, JR. UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on a Motion for
Summary Judgment by Defendants Len D. Hagaman, Thomas Hughes,
Jaska H. Rominger, Chad Slagle, Jennifer Smith, Watauga
County, Watauga County Department of Social Services, Watauga
County Sheriff's Department, Western Surety Company, and
Jessica Weinbarger, (Doc. No. 47).
James Edward McConnell and his wife, Kim McConnell, filed
this action on October 27, 2017, asserting claims against
Defendants in connection with James McConnell's arrest
and subsequent criminal prosecution against him for
committing sexual acts on his adopted son. McConnell was
acquitted after a jury trial. Plaintiffs have named the
following persons and entities as Defendants in this action:
(1) Watauga County, North Carolina; (2) Watauga County
Department of Social Services (“DSS”); (3) Thomas
Hughes, Director of Watauga County DSS at all relevant times;
(4) Jennifer Smith, a Watauga County DSS social worker at all
relevant times; (5) Jessica Winebarger, a Watauga County DSS
social worker at all relevant times; (6) Chad Slagle, a
Watauga County DSS social worker at all relevant times; (7)
Len D. Hagaman, the Watauga County Sheriff at all relevant
times; (8) Watauga County Sheriff's Department; (9) Jaska
H. Rominger, a Watauga County Deputy Sheriff at all relevant
times; and (10) Western Surety Company, the surety on Sheriff
assert a claim under 42 U.S.C. § 1983, alleging that
Defendants violated Plaintiffs' federal constitutional
rights by way of the arrest and prosecution of McConnell.
(Doc. No. 1 at ¶¶ 65-79). Specifically, Plaintiffs
allege that Defendants violated Plaintiffs' Fourth
Amendment right to be free from unreasonable seizure and
false arrest. Plaintiffs also assert a claim under 42
U.S.C. §§ 1985 & 1986, alleging that Defendants
conspired to violate their civil rights. (Id. at
¶¶ 80-86). Plaintiffs further assert numerous
pendent, state law tort claims, including claims for false
imprisonment/arrest, (id. at ¶¶ 87-91);
abuse of process/malicious prosecution, (id. at
¶¶ 92-103); negligent hiring, supervision and
retention, (id. at ¶¶ 104-111);
intentional infliction of emotional distress, (id.
at ¶¶ 112-117); and negligent infliction of
emotional distress, (id. at ¶¶ 118-120).
Plaintiffs also assert a direct claim under the North
Carolina Constitution, (id. at ¶¶
125-133); and a claim against Sheriff Hagaman's official
bond under N.C. Gen. Stat. § 58-76-5, (id. at
¶¶ 9, 12). Plaintiffs seek compensatory and
punitive damages, including damages for loss of consortium,
(id. at ¶¶ 121-24).
timely filed their Answer, (Doc. No. 24), denying
Plaintiffs' material allegations and asserting numerous
affirmative defenses, including qualified immunity, public
officer's immunity, governmental immunity, and the
expiration of the applicable statutes of limitation and/or
repose. On January 22, 2019, Defendants filed
their summary judgment motion. (Doc. No. 47). On March 24,
2019, Plaintiffs filed a response in opposition to the
summary judgment motion. (Doc. No. 80). Defendants filed a
Reply on April 1, 2019. (Doc. No. 82).
serving as their foster parents, Plaintiffs adopted two
brothers, Austin and Alex, then ages 5 and 3, on February 9,
2004. (K.M. Dep. at 28, 41; Doc. No. 1 at ¶ 17). In the
ensuing years, Austin exhibited behavioral problems,
including violence and anger issues, self
mutilation/self-destructive behavior, and drug and alcohol
use. In March 2014, Austin was involuntarily committed to Old
Vineyard Behavioral Health and thereafter to Holly Hills
31, 2014, Austin was admitted to Timber Ridge Center, a Level
III treatment camp located in Rowan County. (K.M. Dep. at
46-47, 65; J.M. Dep. at 81-82, Doc. No. 1 at ¶ 18).
During Austin's admission to Timber Ridge, Nurse Sue Hahn
interviewed Austin, at which time Austin reported to Hahn
that his father James McConnell had engaged in sexual
activity with him in the past. As required by law, Hahn
referred these allegations to the Watauga County DSS. (Smith
Aff. at ¶ 3). On August 5, 2014, a Rowan County social
worker interviewed Austin, who reported that his father had
engaged in sexual activity with him several years earlier.
(Id. at ¶ 4). After the DSS notified the
Sheriff's Office of the allegations on August 5, 2014,
Detective Rominger began a criminal investigation. (Rominger
Aff. at ¶ 7).
August 8, 2014, Rominger and DSS social worker Jennifer
Smith, who was conducting a parallel Child Protective
Services investigation, interviewed James McConnell.
McConnell vehemently denied Austin's allegations. (J.M.
Dep. at 162; Rominger Aff. at ¶ 11; Rominger Dep. at
182-89; Smith Aff. at ¶ 10). On September 4, 2014,
McConnell voluntarily undertook a polygraph examination.
(J.M. Dep. at 15-18). The SBI polygrapher determined that
McConnell's responses indicated a high level of
deception. (Rominger Aff. at ¶ 17, J.M. Dep. at 161).
Immediately thereafter, Rominger conferred with the District
Attorney's Office (“D.A.”), who instructed
Rominger to attempt to obtain the sex toys Austin had
described as being used in the incidents with his father.
(Rominger Aff. at ¶ 18; Rominger Dep. at 171-72).
conferring with attorney Britt Springer, Kim McConnell
consented to a search of Plaintiffs' home by Rominger and
voluntarily surrendered a bag of sex toys to Rominger. (K.M.
Dep. at 59-62, Rominger Aff. at ¶ 22; Rominger Dep. at
173-79). That same day, the DSS, with Plaintiffs'
consent, instituted a Safety Plan in which James McConnell
would have no contact with Alex or Austin, who was still at
Timber Ridge. (K.M. Dep. at 56; Smith Aff. at ¶ 22, Ex.
M; Rominger Dep. at 175-76).
direction of the D.A., Rominger conducted a recorded forensic
interview of Austin on September 11, 2014, during which Austin
related several detailed sexual encounters with James
McConnell when Austin was between 11 and 13 years old.
(Rominger Aff. at ¶ 26, Ex. A; Rominger Dep. at 88-136,
205-11, 213). Rominger met the following day with the D.A.,
who reviewed her recorded interview of Austin. The D.A.
determined to bring criminal charges against McConnell and
instructed Rominger to seek arrest warrants for three counts
of sex offenses with a minor and three counts of taking
indecent liberties with a minor. (Rominger Aff. at ¶ 27;
Rominger Dep. at 146, 158-59).
September 22, 2014, the DSS filed Juvenile Petitions as to
Austin and Alex, alleging that Austin was an Abused,
Dependent and Neglected Juvenile and that Alex was a
Neglected Juvenile. (Smith Aff. at ¶ 27, Exs. O &
P). At the D.A.'s direction, Rominger appeared before
Magistrate Carrie Church on October 27, 2014, seeking
warrants for McConnell's arrest on three counts of Taking
Indecent Liberties with a Child and three counts of Statutory
Rape/Sexual Offense With a Child by an Adult. (Rominger Aff. at
¶ 35; Rominger Dep. at 148, 150-52, 232-34). After
hearing Rominger's testimony, the Magistrate found that
probable cause existed to issue arrest warrants. (Arrest
Warrants; Rominger Aff. at ¶ 36, Rominger Dep. at 157).
Later that day, a two-day hearing began in Juvenile Court
regarding the Juvenile Petitions related to Austin and Alex.
Plaintiffs attended this hearing, both represented by
counsel. Several witnesses testified, including Austin.
Plaintiffs' attorneys vigorously cross-examined Austin
and other witnesses called by DSS. (K.M. Dep. at 12-14, J.M.
Dep. at 18-30; Hearing Tr.).
the hearing, Judge Hal Harrison entered an Order on
Adjudication and Interim Disposition, in which he found
Austin's testimony “to be credible and
specific” and concluded that “clear, cogent and
convincing facts exist making [Austin] an Abused, Dependent
and Neglected Juvenile, ” and further held “that
[Austin] is adjudicated an Abused Juvenile in that
[McConnell] permitted, committed and encouraged the
commission of a sex or pornography offense, to-wit: N.C. G.S.
§ 14-202.1 - ‘indecent liberties' with or upon
[Austin] in violation of criminal law, to wit: N.C. G.S.
7B-101(d).” (Order on Adjudication and Interim
Disposition as to Austin). On October 28, 2014, James McConnell
surrendered himself at the Watauga County Courthouse. (K.M.
Dep. at 62-63, J.M. Dep. at 46-47; Rominger Aff. at ¶
38). He appeared before Judge Warren Hughes, who set a
secured bond of $500, 000. McConnell was detained in the
Watauga County Detention Center until December 15, 2014, when
he was released on bond. (K.M. Dep. at 64, Doc. No. 1 at
November 3, 2014, a Grand Jury indicted McConnell on three
counts of Taking Indecent Liberties with a Child and three
counts of Statutory Rape/Sexual Offense with a Child by an
Adult. (J.M. Dep. at 50, 71; Rominger Aff. at ¶
McConnell's criminal trial began on June 13, 2016, in
Watauga County Criminal Superior Court. Following the close
of the State's case, which included testimony by Austin,
the defense made a motion to dismiss, which was denied.
(Trial Trans., Vol. II at 319-22). The defense made a second
motion to dismiss at the close of the defense case, which was
also denied. (Trial Trans., Vol. II at 425-26). After
deliberating for two hours, the jury acquitted McConnell of
all charges. (J.M. Dep. at 61; Trial Trans., Vol. II at
450-51). Plaintiffs then filed this action against the
STANDARD OF REVIEW
judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A factual dispute is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
material only if it might affect the outcome of the suit
under governing law. Id.
movant has the “initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal citations
this initial burden is met, the burden shifts to the
nonmoving party. The nonmoving party “must set forth
specific facts showing that there is a genuine issue for
trial.” Id. at 322 n.3. The nonmoving party
may not rely upon mere allegations or denials of allegations
in his pleadings to defeat a motion for summary judgment.
Id. at 324. The nonmoving party must present
sufficient evidence from which “a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; accord Sylvia Dev.
Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir.
ruling on a summary judgment motion, a court must view the
evidence and any inferences from the evidence in the light
most favorable to the nonmoving party. Anderson, 477
U.S. at 255. “‘Where the record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for
trial.'” Ricci v. DeStefano, 129 S.Ct.
2658, 2677 (2009) (quoting Matsushita v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)).
PLAINTIFFS' SECTION 1983 CLAIMS AGAINST DEFENDANTS IN
THEIR INDIVIDUAL LIABILITIES
bring various constitutional claims against Defendants in
their individual capacities through Section 1983 based on
Plaintiffs' contentions that James McDonnell's arrest
and subsequent trial was not based on probable cause. In
response, Defendants raise the defense of qualified immunity.
For the following reasons, the Court finds that
Plaintiffs' Section 1983 claims fail because Defendants
did not violate Plaintiffs' constitutional rights. In any
event, even if there was a constitutional violation,
Defendants are entitled to qualified immunity.
first contend that there was no violation of Plaintiffs'
constitutional rights because probable cause existed to
arrest James McConnell. The Court agrees. A case involving an
arrest, such as this one, implicates the Fourth
Amendment's prohibition against
“unreasonable…seizures.” U.S. Const.
Amend. IV. “The Fourth Amendment prohibits law
enforcement officers from making unreasonable seizures, and a
seizure of an individual effected without probable cause is
unreasonable.” Brooks v. City of
Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996).
Conversely, a seizure effected with probable cause is
reasonable as a matter of law; thus, the existence of
probable cause defeats a claim of “unreasonable
seizure” under the Fourth Amendment. See Street v.
Surdyka, 492 F.2d 368, 372-73 (4th Cir. 1974).
“The Constitution does not guarantee that only the
guilty will be arrested.” Baker v. McCollan,
443 U.S. 137, 145 (1979).
probable cause exists when an officer seeks issuance of a
warrant, then the officer's action in seeking the warrant
and the subsequent arrest do not violate the Fourth
Amendment. Thus, an officer who arrests a suspect
pursuant to a warrant does not violate the Fourth Amendment
unless that officer did not possess probable cause to seek
the warrant. Porterfield v. Lott, 156 F.3d 563, 570
(4th Cir. 1998); Brooks, 85 F.3d at 184 n.7.
cause is determined from the totality of the circumstances
known to the officer at the time of the arrest.”
Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002);
United States v. Garcia, 848 F.2d 58, 59-60 (4th
Cir. 1988); Illinois v. Gates, 462 U.S. 213, 230-32
(1983). Probable cause is a commonsense, nontechnical concept
that “deals with the factual and practical
considerations of everyday life on which reasonable and
prudent men, not legal technicians, act.” Ornelas
v. United States, 517 U.S. 690, 695 (1996). The
circumstances are weighed “not in terms of library
analysis by scholars, but as understood by those versed in
the field of law enforcement.” United States v.
Dickey-Bey, 393 F.3d 449, 453 (4th Cir. 2004) (quoting
Gates, 462 U.S. at 232). Under this
“pragmatic, common sense approach, ” courts
“defer to the expertise and experience of law
enforcement officers ….” Dickey-Bey,
393 F.3d at 453.
Supreme Court has recently reiterated, “probable cause
is not a high bar.” District of Columbia v.
Wesby, 138 S.Ct. 577, 586 (2018). “While probable
cause requires more than ‘bare suspicion,' it
requires less than that evidence necessary to convict.”
United States v. Gray, 137 F.3d 765, 769 (4th Cir.
1998); Wong Sun v. United States, 371 U.S. 471, 479
(1963). The arresting officer's belief need not be
correct or even more likely true than false. Texas v.
Brown, 460 U.S. 730, 742 (1983). Indeed, the Fourth
Circuit has specifically rejected the argument that
“probable cause means more likely than not, [more than]
50/50, ” and made it clear that “the
probable-cause standard does not require that the
officer's belief be more likely true than false.”
United States v. Humphries, 372 F.3d 653, 660 (4th
Cir. 2004). Therefore, a reasonable officer may have probable
cause to believe a suspect has committed a crime even if the
officer's belief is not more likely true than false.
“Probable cause determinations are … preliminary
and tentative.” Acosta v. Ames Dep't Stores,
Inc., 386 F.3d 5, 11 (1st Cir. 2004). Since probable
cause does not even require a showing that guilt is more
probable than not, the probable cause stage is not the stage
where the ultimate question of guilt or innocence is
determined. Instead, the determination ...