Robertson v. Elliott , 315 F. App'x 473 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1839
JAMES ROBERTSON; JERRY MARCUM; LANDON HATFIELD; ROBERT LEE
EVANS; SHAWN CHRISTOPHER COOK; WILLIAM LUCAS; SHANNON
HATFIELD,
Plaintiffs - Appellees,
and
SOFIA ROBERTSON,
Plaintiff,
v.
TODD ELLIOTT, in his individual and official capacity as a
police officer for the Wayne County Sheriff’s Department;
DAVE PENNINGTON, in his official capacity as the Sheriff of
Wayne County,
Defendants – Appellants,
and
REX VARNEY, in his individual and official capacity as lead
investigator for the Wayne County Sheriff’s Department,
Defendant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:05-cv-00777; 3:06-cv-00374; 3:06-cv-00375;
3:06-cv-00377; 3:06-cv-00378; 3:06-cv-00379; 3:06-cv-00376)
Argued: January 28, 2009 Decided: March 6, 2009
Before NIEMEYER and MICHAEL, Circuit Judges, and Arthur L.
ALARCÓN, Senior Circuit Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Reversed and remanded by unpublished per curiam opinion.
ARGUED: Jason Eric Wandling, SHUMAN, MCCUSKEY & SLICER,
P.L.L.C., Charleston, West Virginia, for Appellants. Lonnie
Carl Simmons, DITRAPANO, BARRETT & DIPIERO, P.L.L.C.,
Charleston, West Virginia, for Appellees. ON BRIEF: John F.
McCuskey, Dwayne E. Cyrus, SHUMAN, MCCUSKEY & SLICER, P.L.L.C.,
Charleston, West Virginia, for Appellants. Heather M.
Langeland, DITRAPANO, BARRETT & DIPIERO, P.L.L.C., Charleston,
West Virginia; Roger D. Forman, Jason E. Huber, Jonathan L.
Matthews, FORMAN & HUBER, L.C., Charleston, West Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
The seven plaintiffs in this case were arrested and
indicted on drug charges in Wayne County, West Virginia, on the
basis of evidence fabricated by a confidential informant. The
plaintiffs sued the Wayne County Sheriff’s Department, Sheriff
David Pennington, and Chief Field Deputy (Chief Deputy) Todd
Elliott, asserting claims under 42 U.S.C. § 1983 and state law.
Sheriff Pennington and Chief Deputy Elliot were sued in both
their individual and official capacities. The Sheriff and the
Chief Deputy appeal the district court’s denial of their motion
for summary judgment based on qualified immunity. We reverse,
concluding that these two defendants are entitled to qualified
immunity on the § 1983 claims brought against them in their
individual capacities.
I.
We take the facts as assumed by the district court,
which considered the record in the light most favorable to the
non-moving parties (here, the plaintiffs). Rogers v. Pendleton,
249 F.3d 279, 285 n.2 (4th Cir. 2001). Wayne County deputy
sheriffs arrested Thomas Osborne in Fort Gay, West Virginia, on
May 9, 2003, for writing worthless checks. Immediately after
his arrest, Osborne offered to assist law enforcement by
participating in drug transactions as a confidential informant.
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The arresting deputies contacted Chief Deputy Elliott, who in
turn contacted Sheriff Pennington, for authorization to use
Osborne as a confidential informant. With Sheriff Pennington’s
approval, Chief Deputy Elliot took Osborne to a local sports bar
to make two controlled drug purchases (or “drug buys”) that same
night. Forensic laboratory results conducted months later
confirmed the presence of cocaine and Hydrocodone in the
substances that Osborne purchased in those initial transactions.
Following these initial transactions, Chief Deputy
Elliot and other Wayne County deputies asked Osborne to assist
in approximately thirty-one additional drug buys as a
confidential informant. In order to profit from the
arrangement, Osborne faked many of the purchases. Prior to a
transaction he would hide a baking soda mixture in a baggie in a
compartment cut in the sole of one of his sandals. He would
then approach an individual (whom he typically chose at random)
and act as though he was purchasing drugs. Before returning to
the police, he would replace the baking soda mixture in his shoe
with the cash he received from the deputies. He would then
deliver the baking soda mixture to the deputies. In some
instances Osborne recorded fake conversations in which he
changed his voice to imitate the individuals he implicated and
gave those recordings to the deputies. Osborne used the cash he
kept from the fake purchases to buy OxyContin, a controlled
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substance. The district court recounted how the deputies dealt
with Osborne and what the consequences of his fabrications were:
Although Deputy Elliot and others acknowledged the
importance of searching a confidential informant, both
before and after a drug transaction, it is clear that
Osborne was seldom, if ever, subject to a thorough
check. Osborne was frequently allowed to use his own
vehicle during the buys. (On one occasion his mother
even accompanied him on the buy.) Although Osborne’s
sheer number of contacts alone might have indicated
that he was a habitual user of illegal drugs, deputies
never tested him. (Osborne himself testified that he
was probably high during many, if not most, of these
transactions.) Osborne also selected the targets of
these transactions on his own. It is not clear how
often (if at all) officers conducted field tests to
confirm the presence of drugs.
While the sheriff’s deputies clearly did not take
all possible precautions in the use of Osborne as an
informant, the department did . . . undertake some
measures to validate the buys. A check of Osborne’s
criminal record in West Virginia and Kentucky, though
perhaps cursory, was conducted before any of the
transactions took place. Osborne wore a wire during
at least some buys. Deputies obtained warrants for
each arrest and every suspect -- including each of the
plaintiffs -- was indicted by a Wayne County grand
jury. The Wayne County Prosecutor, Jim Young, had
some oversight . . . .
J.A. 839-40. There is no suggestion that Sheriff Pennington,
Chief Deputy Elliott, or any deputy or investigator in fact knew
that Osborne was faking the drug buys.
As a result of the fabricated evidence, twenty-nine
individuals, including each of the plaintiffs, were arrested and
indicted. Because of a backlog at the forensic laboratory used
by the Wayne County Sheriff’s Department, the substances Osborne
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delivered to the deputies were not tested until trial dates were
set for the individuals implicated by Osborne. But when the
forensic results finally did become available, they revealed
that the substances delivered by Osborne were not in fact
controlled substances. The Wayne County prosecutor ultimately
dismissed all charges against the plaintiffs and other
individuals inculpated by evidence gathered through Osborne.
The plaintiffs in this appeal, whose claims the
district court consolidated, were arrested and indicted as a
result of the evidence falsified by Osborne. They filed suit
against the Wayne County Sheriff’s Department, Sheriff
Pennington, Chief Deputy Elliot, and several deputies or
investigators who have since been dismissed. The plaintiffs
allege violations of 42 U.S.C. § 1983 and the West Virginia
constitution and assert several claims under state law. Sheriff
Pennington and Chief Deputy Elliot were sued in both their
individual and official capacities. The Sheriff and Chief
Deputy Elliott moved for summary judgment on several bases,
including qualified immunity. The motion was denied by the
district court. Sheriff Pennington and Chief Deputy Elliott
appeal the denial of qualified immunity.
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II.
We have jurisdiction to review a district court’s
denial of a claim of qualified immunity to the extent the ruling
turns on a question of law. Henry v. Purnell, 501 F.3d 374, 376
(4th Cir. 2007); Winfield v. Bass, 106 F.3d 525, 529 (4th Cir.
1997) (en banc). Our review of the denial of qualified immunity
is de novo, but we take as true the facts that the district
court “deemed sufficiently supported for purposes of summary
judgment.” Rogers, 249 F.3d at 285 & n.2 (quoting Behrens v.
Pelletier, 516 U.S. 299, 313 (1996)). Where the district court
is not explicit, we may review the record “to determine what
facts the district court, in the light most favorable to the
nonmoving party, likely assumed.” Id. (quoting Behrens, 516
U.S. at 313); see also Valladares v. Cordero, 552 F.3d 384, 389
(4th Cir. 2009).
III.
In evaluating claims of qualified immunity, we have
first decided whether the facts, as taken in the light most
favorable to the plaintiff, make out a violation of a
constitutional right. Henry, 501 F.3d at 377. If this first
step has been satisfied, we have then decided whether the right
at issue was clearly established at the time of the alleged
misconduct. See id.; see also Pearson v. Callahan, No. 07-751,
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slip. op. at 6, 10-11 (U.S. Jan. 21, 2009) (noting that this
two-step sequence is no longer mandatory, but is often
appropriate and beneficial).
In denying qualified immunity here, the district court
concluded that there was a material factual dispute about
whether the Sheriff and Chief Deputy Elliott were responsible
for a custom of deliberate indifference to conduct such as
Osborne’s. Robertson v. Pennington, No. 3:05-cv-0777 (S.D.
W. Va. July 18, 2008). The district court invoked the framework
applicable to government entity and official capacity liability,
holding that “a jury could fairly conclude that the Wayne County
Sheriff’s Department, Sheriff Pennington, and Deputy Elliot
themselves were responsible for violating plaintiffs’
constitutional right not to be deprived of liberty as the result
of fabricated evidence.” Robertson, No. 3:05-cv-077, slip op.
at 10; see also Monell v. Dep’t of Soc. Servs. of City of N.Y.,
436 U.S. 658, 690-91 (1978) (indicating that government entities
may be liable for unconstitutional policies or customs);
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (noting that
official capacity claims require plaintiff to prove a policy or
custom under Monell). The Monell framework applicable to
government entity (or official capacity) liability bears on
whether a government entity is sufficiently responsible for a
constitutional deprivation to hold the entity liable under
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§ 1983; Monell does not bear on whether there has been a
constitutional deprivation in the first place.
Here, it is appropriate for us to begin by considering
the question of whether the plaintiffs have shown a violation of
a constitutional right. See Pearson v. Callahan, slip op. at
10-11. The plaintiffs argue that they were unconstitutionally
deprived of their liberty as the result of fabricated evidence.
We have recognized a constitutional right “not to be deprived of
liberty as a result of the fabrication of evidence by a
government officer acting in an investigative capacity.”
Washington v. Wilmore, 407 F.3d 274, 282 (4th Cir. 2005)
(emphasis added) (internal quotation omitted). In the present
case, however, the confidential informant (Osborne) rather than
a government officer created false evidence. Neither the facts
as viewed by the district court nor any allegations in the
record (even taken in the light most favorable to the
defendants) suggest that Sheriff Pennington or Chief Deputy
Elliott intended that Osborne fabricate evidence or had
knowledge that Osborne fabricated the evidence used to arrest
and indict the plaintiffs.
The facts as recounted by the district court are also
inadequate to suggest that Pennington and Elliot were reckless
with respect to the falsity of the evidence offered by Osborne.
The district court noted that the deputies did take some
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precautions to validate Osborne’s actions. Robertson, No. 3:05-
cv-077, slip op. at 3. They checked Osborne’s criminal record
before any transactions took place, required him to wear a wire
during some of the buys, and submitted the substances he turned
in for forensic testing. Id. Osborne was able to bypass law
enforcement precautions by concealing substances in a
compartment in his sandal. Id. at 4. Because the plaintiffs’
allegations do not suffice to establish recklessness, we need
not decide whether the Constitution affords the plaintiffs a
right against a government officer’s recklessness with respect
to false or fabricated evidence. See Justice v. Dennis, 793
F.2d 573, 578 (4th Cir. 1986) (noting that recklessness and
gross negligence may be sufficient for some claims under the due
process clause).
At bottom, the plaintiffs argue that the Sheriff and
his deputies failed to act as reasonable police officers in
using Osborne as a confidential informant. To succeed on this
claim, the plaintiffs would have to demonstrate that there is an
established constitutional right not to be deprived of liberty
as a result of false evidence negligently gathered by a
government officer. The Supreme Court, however, has held “that
the Due Process Clause is simply not implicated by a negligent
act of an official causing unintended loss of or injury to life,
liberty or property.” Daniels v. Williams, 474 U.S. 327, 328
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(1986); see also Jean v. Collins 221 F.3d 656, 660 (4th Cir.
2000) (en banc). There is no constitutional right that protects
against the deprivation of liberty as a result of negligently
gathered evidence.
Because the facts alleged by the plaintiffs do not
make out a violation of a constitutional right, Sheriff
Pennington and Chief Deputy Elliott are entitled to qualified
immunity. The district court erred by failing to grant summary
judgment to Pennington and Elliott on those claims for which
qualified immunity is an available defense, namely, the § 1983
claims asserted against them in their individual capacities.
The district court’s order denying qualified immunity to Sheriff
Pennington and Chief Deputy Elliott is therefore reversed. The
district court will enter the appropriate order on remand.
REVERSED AND REMANDED
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