Gantt v. Whitaker , 57 F. App'x 141 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KENNETH GANTT, 
Plaintiff-Appellant,
v.
WILLIAM ALAN WHITAKER, Sheriff of
Davie County, in his official
capacity; WILLIAM LEE WHITESIDES,  No. 02-1340
in his individual and official
capacities; THE CINCINNATI
INSURANCE COMPANY, as Surety;
COUNTY OF DAVIE,
Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CA-00-383-1)
Argued: December 5, 2002
Decided: January 23, 2003
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Stephen Luke Largess, FERGUSON, STEIN, CHAM-
BERS, WALLAS, ADKINS, GRESHAM & SUMTER, P.A., Char-
2 GANTT v. WHITAKER
lotte, North Carolina, for Appellant. Robert Danny Mason, Jr.,
WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C., Winston-
Salem, North Carolina, for Appellees. ON BRIEF: James R. Morgan,
Jr., WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,
Winston-Salem, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kenneth T. Gantt initiated this proceeding in the United States Dis-
trict Court for the Middle District of North Carolina under 42
U.S.C.A. § 1983. He contended that Sheriff William Allen Whitaker
and Deputy William Lee Whitesides of the Davie County Sheriff’s
Office (the Sheriff’s Office) violated his constitutional rights by caus-
ing him to be arrested and prosecuted, without probable cause, on
charges of impersonating a law enforcement officer, selling alarms
without a license, and obtaining property under false pretenses. He
also asserted various related state law claims. The district court
entered summary judgment in favor of Whitaker and Whitesides on
the basis of qualified immunity, and this appeal followed. For the rea-
sons set forth below, we affirm.
I.
A.
On April 9, 1999, the Sheriff’s Office received several calls from
citizens reporting that an individual impersonating a law enforcement
officer was attempting to sell alarm systems and/or self-defense les-
sons door-to-door in the Joe Road/Highway 64 East area of Davie
County.1 The impersonator was reportedly a black male driving a
1
In summarizing the facts in this case, we resolve all disputed factual
issues in favor of Gantt, the non-moving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
GANTT v. WHITAKER 3
black Blazer. In response to these calls, Deputy Brown was dis-
patched to the vicinity but found no one meeting the description.
That night, a local television station aired a story in which Sergeant
Diggs reported that a black male was impersonating an officer and
selling alarms and/or self-defense lessons. Shortly thereafter, the
Sheriff’s Office received two additional calls from local residents,
Paul Johnson and Jo Anne Allen, who each reported being visited by
a man attempting to sell alarm systems.
Brown was dispatched to talk with Johnson. Johnson informed
Brown that a man identifying himself as Gantt and driving a blue
minivan had attempted to sell him a wireless alarm system earlier that
day. After speaking with Johnson, Brown prepared an incident report
indicating that Gantt "possibly represent[ed] [him]self as a law
enforcement officer to sell alarm systems." (J.A. at 190-91.)
Diggs was dispatched to respond to Allen’s call. Allen and her hus-
band informed Diggs that a black male identifying himself as Gantt
had come to their residence, told them he worked with the Sheriff’s
Office, and offered to sell them an alarm system. According to the
Allens, Gantt was carrying a black briefcase-type bag with a gold star
emblem on it and was driving a blue minivan. Diggs completed an
incident report and, in the space reserved for how the crime was com-
mitted, indicated that Gantt stated that he worked for the Sheriff’s
Office. In the block of the report marked "Crime," Diggs originally
wrote "personating an officer," but he later changed this to "suspi-
cious person." (J.A. at 188.)
The next morning, Whitesides reported for duty and attended a
shift meeting where the night officers conveyed information to those
beginning the morning shift. At this meeting, Whitesides was
instructed to be on the lookout for a black male, possibly identifying
himself as Gantt, who was suspected of impersonating a law enforce-
ment officer to sell alarm systems and/or self-defense lessons.
Gantt, having seen a rebroadcast of the news report, went to the
Mocksville Police Department to determine if he was the person
described in the report. The Mocksville Police Department called the
Sheriff’s Office and told them that a black male identifying himself
4 GANTT v. WHITAKER
as Kenneth Gantt was there and wanted to speak with someone about
the report of impersonating a law enforcement officer. Whitesides
was dispatched to investigate and, upon arrival, met Gantt. At White-
sides’s request, Gantt followed Whitesides back to the Sheriff’s
Office in his own vehicle.
When Gantt arrived at the Sheriff’s Office, he asked to speak with
the Sheriff. Whitaker agreed and went to the hallway to speak with
Gantt. Gantt expressed his frustration with the news report and asked
Whitaker to issue a retraction, noting how harmful the news report
would be for his business. Whitaker told Gantt that he would not
assist in having the report retracted. Whitaker later stated that he
found Gantt to be "belligerent and arrogant" during their conversa-
tion. (J.A. at 698.) According to Gantt, Whitaker then met with
Whitesides about filing charges against Gantt.
When Whitesides returned, he asked Gantt if he sold alarms and,
if so, whether he had a license. Gantt stated that he did sell alarms but
that he did not need a license. Whitesides then asked Gantt if he had
a briefcase with a gold star emblem on it. Gantt replied that he did
and went to his car to retrieve the briefcase for Whiteside’s inspec-
tion. Whitesides noted that the briefcase had a large, gold Sheriff’s
Association star emblem on the side. The briefcase contained a dem-
onstration kit for a home alarm system and several receipts, including
one signed by the Allens.
At this time, Whitesides went to discuss the situation with
Whitaker, who advised Whitesides to telephone the district attorney’s
office. Whitaker and Whitesides both allege that the telephone call
was for the purpose of determining whether Gantt’s conduct consti-
tuted a crime and whether the district attorney’s office would prose-
cute such a case. Gantt, on the other hand, contends that Whitesides
and Whitaker had already decided that they would charge Gantt with
a crime and contacted the district attorney’s office to familiarize
themselves with the statutory provisions governing alarm licensing.
When Whitesides telephoned the district attorney’s office, he spoke
with Assistant District Attorney Douglas Vreeland, and explained the
information he had regarding Gantt. According to Vreeland, the facts
relayed by Whitesides matched the requisite elements of the offense
GANTT v. WHITAKER 5
of impersonating an officer. Vreeland also pointed out statutory provi-
sions governing the offenses of selling alarms without a license and
obtaining property by false pretenses.
After this conversation, Whitesides conveyed the information relat-
ing to the case to a magistrate in Davie County. The magistrate
researched the statutes governing the offenses of obtaining property
by false pretenses, selling alarms without a license, and impersonating
an officer. Concluding that the facts conveyed by Whitesides sup-
ported each of the elements of these offenses, the magistrate found
probable cause to issue warrants for Gantt’s arrest. Whitesides served
the warrants on Gantt and arrested him.
Over the next few days, Whitesides conducted further investigation
and determined that Gantt had similarly approached other local citi-
zens. On this basis, additional charges were filed against Gantt.
Less than two months later, the district attorney’s office dismissed
all charges against Gantt except one alarm license violation. After the
North Carolina Alarm Licensing Board ruled that Gantt did not need
a license and was not surveying people’s homes, this remaining
charge was voluntarily dismissed.
B.
On April 17, 2000, Gantt filed this action against Whitaker, in his
official capacity, Whitesides, in his individual and official capacities,
and Cincinnati Insurance Company, as a surety on the Sheriff’s surety
bond (collectively, Defendants).2 Gantt alleged a cause of action
under 42 U.S.C.A. § 1983 for violations of the Fourth Amendment,
including false arrest and malicious prosecution, and various state law
claims.
Defendants filed a motion for summary judgment as to all claims,
and Gantt filed a motion for partial summary judgment as to his
§ 1983 Fourth Amendment claims and his state law false arrest and
2
Gantt originally included Davie County as a defendant, but all claims
against the County were voluntarily dismissed after Gantt conceded that
the County was not a proper party. (J.A. at 930 n.2.)
6 GANTT v. WHITAKER
malicious prosecution claims. Following oral argument, the district
court granted Defendants’ motion for summary judgment, denied
Gantt’s motion for partial summary judgment, and declined to exer-
cise jurisdiction over Gantt’s state law claims. Gantt timely noted this
appeal.
II.
Gantt first argues that the district court erred by concluding that
Whitesides is entitled to summary judgment on the basis of qualified
immunity. We review de novo the district court’s grant of summary
judgment. See Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196
(4th Cir. 1997). Summary judgment is appropriate only "if the plead-
ings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue
as to any material fact." Fed. R. Civ. P. 56(c).
Qualified immunity protects government officials performing dis-
cretionary functions from liability for civil damages "insofar as their
conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The steps in the qualified
immunity analysis are sequential: the court "‘must first determine
whether the plaintiff has alleged the deprivation of an actual constitu-
tional right at all,’" before "‘proceed[ing] to determine whether that
right was clearly established at the time of the alleged violation.’"
Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Conn v. Gabbert,
526 U.S. 286, 290 (1999)); see also Saucier v. Katz, 533 U.S. 194,
200-01 (2001); Anderson v. Creighton, 483 U.S. 635, 638-41 (1987);
Milstead v. Kibler, 243 F.3d 157, 161-62 (4th Cir. 2001).
Applying this framework, we evaluate whether the facts, taken in
the light most favorable to Gantt, show that Whitesides’s conduct vio-
lated any of Gantt’s federal rights. In identifying the specific constitu-
tional right allegedly infringed, we first address Gantt’s argument that
the district court erred by failing to recognize that Gantt had properly
alleged at least two distinct constitutional violations: a "false arrest"
§ 1983 claim and a "malicious prosecution" § 1983 claim.3 The dis-
3
In a footnote of his appellate brief, Gantt summarily asserts that the
district court failed to address his claim that the Fourth Amendment also
GANTT v. WHITAKER 7
trict court stated that "[m]alicious prosecution is a common law cause
of action which is not independently redressable under § 1983," and
concluded that the claims "really merge into one claim based on a
Fourth Amendment violation." (J.A. at 938-39 n.4.)
Section 1983 "is not itself a source of substantive rights, but a
method for vindicating federal rights elsewhere conferred by those
parts of the United States Constitution and federal statutes that it
describes." Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (empha-
sis added). Because § 1983 does not provide redress for violations of
state law, White v. Chambliss, 112 F.3d 731, 738 (4th Cir. 1997), we
previously have made clear that "there is no such thing as a "§ 1983
malicious prosecution’ claim. What we term[ ] a ‘malicious prosecu-
tion’ claim . . . is simply a claim founded on a Fourth Amendment
seizure that incorporates elements of the analogous common law tort
of malicious prosecution — specifically, the requirement that the
prior proceeding terminate favorably to the plaintiff. It is not an inde-
pendent cause of action." Lambert v. Williams, 223 F.3d 257, 262 (4th
Cir. 2000) (internal citation and footnote omitted), cert. denied, ___
U.S. ___, 121 S.Ct. 889 (2001); see also Albright v. Oliver, 510 U.S.
266, 271, 275 (1994) (holding that a claim for unlawful initiation of
criminal proceedings could be brought under § 1983, if at all, only
under the Fourth Amendment); Rogers v. Pendleton, 249 F.3d 279,
294 (4th Cir. 2001) ("Rogers’ malicious prosecution claim is so inter-
twined legally with his false arrest claim as to stand or fall with that
claim for qualified immunity purposes. We conclude that this claim
is wholly derivative of the false arrest claim for qualified immunity
was violated when he was unlawfully seized at the Sheriff’s Office prior
to his arrest. Because Gantt has failed to comply with the dictates of Fed-
eral Rule of Appellate Procedure 28(a)(9)(A) regarding this claim, we
consider him to have abandoned it. See Edwards v. City of Goldsboro,
178 F.3d 231, 241 n.6 (4th Cir. 1999) ("Federal Rule of Appellate Proce-
dure 28(a)(9)(A) requires that the argument section of an appellant’s
opening brief must contain the appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the record on
which the appellant relies. . . . Failure to comply with the specific dic-
tates of this rule with respect to a particular claim triggers abandonment
of that claim on appeal." (internal citations and quotation marks omit-
ted)).
8 GANTT v. WHITAKER
purposes and thus do not analyze it separately." (internal citation
omitted)). Thus, we agree with the district court that Whitesides’ con-
duct — both in terms of the arrest and the subsequent criminal prose-
cution — must be evaluated solely by reference to the Fourth
Amendment’s prohibition against unreasonable seizures.4
To establish that his seizure was unreasonable, Gantt must demon-
strate that his arrest was without probable cause. Dunaway v. New
York, 442 U.S 200, 213 (1979) ("Fourth Amendment seizures are
‘reasonable’ only if based on probable cause."); Porterfield v. Lott,
156 F.3d 563, 568-71 (4th Cir. 1998) (holding that a Fourth Amend-
ment claim founded on malicious prosecution must be analyzed to
determine whether probable cause for the arrest was lacking). Proba-
ble cause is determined from the totality of the circumstances known
to the officer at the time of the arrest. United States v. Garcia, 848
F.2d 58, 59-60 (4th Cir. 1988). For probable cause to exist, there need
be only enough evidence to warrant the belief of a reasonable officer
that an offense has been or is being committed. Wong Sun v. United
States, 371 U.S. 471, 479 (1963). "Probable cause requires more than
bare suspicion but requires less than evidence necessary to convict."
Porterfield, 156 F.3d at 569 (internal quotation marks omitted).
Two factors govern the determination of probable cause in any sit-
uation: "the suspect’s conduct as known to the officer, and the con-
tours of the offense thought to be committed by that conduct."
Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992). Therefore,
probable cause "could be lacking in a given case, and an arrestee’s
right violated, either because of an arresting officer’s insufficient fac-
tual knowledge, or legal misunderstanding, or both." Id. Accordingly,
the appropriate probable cause inquiry focuses on the charged offense
in relation to the information known to Whitesides at the time of
Gantt’s arrest. Further, because "the reasonableness of a seizure under
the Fourth Amendment should be analyzed from an objective per-
spective[,] . . . the subjective state of mind of the defendant, whether
good faith or ill will, is irrelevant." Brooks v. City of Winston-Salem,
N.C., 85 F.3d 178, 184 n.5 (4th Cir. 1996)).
4
In relevant part, the Fourth Amendment protects "[t]he right of the
people to be secure in their persons . . . against unreasonable searches
and seizures." U.S. Const. amend. IV.
GANTT v. WHITAKER 9
A. Impersonating an Officer
Under North Carolina law, the crime of impersonating an officer
is defined in relevant part as follows:
(a) No person shall falsely represent to another that he is
a sworn law-enforcement officer. As used in this sec-
tion, a person represents that he is a sworn law-
enforcement officer if he:
(1) Verbally informs another that he is a sworn
law-enforcement officer, whether or not the
representation refers to a particular agency;
(2) Displays any badge or identification signify-
ing to a reasonable individual that the person
is a sworn law-enforcement officer, whether
or not the badge or other identification refers
to a particular law–enforcement agency.
N.C. Gen. Stat. Ann. § 14-277(a) (Lexis 2001); see also State v. Chis-
holm, 369 S.E.2d 375, 378 (N.C. App. 1988) ("To have convicted
defendant . . . under [§]14-277 the jury was required to find that
defendant represented himself as a sworn law-enforcement officer to
another.").
Considering the totality of the circumstances of which Whitesides
had knowledge at the time, we find that there was sufficient informa-
tion to justify a reasonable belief that Gantt had violated § 14-277(a).
First, Whitesides had been informed at a shift meeting that the Sher-
iff’s Office had received calls from residents reporting that an individ-
ual was impersonating a law enforcement officer and was attempting
to sell alarm systems. Second, the individual was identified as Gantt.
Third, Brown’s incident report stated that Gantt had represented him-
self to a local resident "as a law enforcement officer to sell alarm sys-
tems."5 (J.A. at 190-91.) Fourth, Diggs’s incident report stated that
5
There is uncontested evidence that Whitesides reviewed Diggs’s and
Brown’s incident reports before seeking an arrest warrant. (J.A. at 719-
20.)
10 GANTT v. WHITAKER
Gantt told the Allens that he "worked for" the Sheriff’s Office. (J.A.
at 189.) Fifth, according to Diggs’s incident report, the Allens had
observed a gold star emblem on the outside of Gantt’s briefcase.
Sixth, Whitesides personally observed a "pretty big" gold star
emblem, marked with the words "Sheriff’s Association" on the out-
side of Gantt’s briefcase. (J.A. at 723.) The briefcase contained a
demonstration kit for alarm systems and receipts from the sale of
alarm systems, making it more likely than not that Gantt carried the
bag with him while attempting to sell alarm systems. Regardless of
whether this evidence is sufficient to support a conviction under § 14-
277(a), the evidence is sufficient to establish probable cause to
believe that Gantt had violated the provision.6
B. Attempting to Sell Alarm Systems Without a License
North Carolina General Statute § 74D-2 makes it a crime for a per-
son or entity to "engage in or hold itself out as engaging in an alarm
systems business without first being licensed in accordance with this
Chapter." N.C. Gen. Stat. Ann. § 74D-2 (Lexis 2001). Gantt admitted
to Whitesides that he was selling alarm systems door-to-door without
a license, and this admission was further corroborated by the contents
of Gantt’s briefcase. Thus, the only issue is whether Whitesides had
probable cause to believe that Gantt was engaged in or holding him-
self out as engaged in "an alarm systems business."
6
Gantt also alleges that Whitesides violated his Fourth Amendment
rights by intentionally lying to the magistrate and claiming that Gantt had
displayed his Sheriff Association membership card. Because Gantt’s dis-
play of his Sheriff Association membership card was not necessary to the
finding of probable cause, and thus the issuance of a warrant, see supra
text pp. 9-10, Whitesides did not violate Gantt’s Fourth Amendment
rights even if Gantt’s allegation is true, see Franks v. Delaware, 438 U.S.
154, 155 (1978) (holding that, to show a violation of defendant’s Fourth
Amendment rights during the warrant process, defendant must make a
substantial showing that an affiant for an arrest warrant knowingly,
intentionally, or recklessly included a false statement and that "the alleg-
edly false statement [wa]s necessary to the finding of probable cause");
United States v. Akinkoye, 185 F.3d 192, 199 (4th Cir. 1999) (finding no
Franks violation because probable cause existed without the allegedly
false identifications).
GANTT v. WHITAKER 11
An "alarm systems business" is defined in pertinent part by statute
as
any person . . . which [sic] sells or attempts to sell by engag-
ing in a personal solicitation at a residence . . . when com-
bined with personal inspection of the interior of the
residence . . . to advise on specific types and specific loca-
tions of alarm system devices, installs, services, monitors or
responds to electrical, electronic or mechanical alarm signal
devices, burglar alarms, television cameras or still cameras
used to detect burglary, breaking or entering, intrusion,
shoplifting, pilferage, or theft.
Id. Gantt notes that the North Carolina Alarm Licensing Board ulti-
mately concluded that he was not inspecting the interior of residences
and, therefore, did not need a license to sell his alarm systems. This
fact, however, is of little consequence, in that evidence sufficient to
find an individual guilty of an offense is not required to establish
probable cause. Porterfield, 156 F.3d at 569. From the incident
reports, Whitesides’s interview with Gantt, and Whitesides’s personal
inspection of Gantt’s briefcase, Whitesides reasonably believed that
Gantt was entering residents’ homes in connection with the sale and
installation of alarm systems, and Whitesides also reasonably
believed that Gantt had demonstrated the alarm system inside the
Allens’ residence. A reasonable person could logically assume that
the installation and/or demonstration of the alarm system involved
some inspection of the residence as well as advice on the type or
proper location for the alarm system. Thus, the information possessed
by Whitesides at the time of the arrest was sufficient to justify his
belief that Gantt had violated § 74D-2.
C. Obtaining Property By False Pretenses
The elements of the crime of obtaining property by false pretenses
are: (1) a false representation of a past or subsisting fact or a future
fulfillment or event; (2) which is calculated and intended to deceive;
(3) which does in fact deceive; and (4) by which the defendant obtains
or attempts to obtain something of value from another. N.C. Gen.
Stat. Ann. § 14-100 (Lexis 2001); State v. Hutchinson, 532 S.E.2d
569, 573 (N.C. App. 2000). As detailed above, Whitesides had reli-
12 GANTT v. WHITAKER
able information that Gantt was representing himself as a law enforce-
ment officer in an attempt to sell alarm systems. Whitesides could
reasonably conclude that this representation was false and was calcu-
lated to deceive for the purpose of obtaining money from potential
customers. Diggs’s report indicated that the Allens gave Gantt a
deposit for the purchase of an alarm system, which provides a reason-
able inference that they were in fact deceived by Gantt’s false repre-
sentation that he worked for the Sheriff’s Office. Thus, Whitesides
possessed probable cause to believe that Gantt had violated § 14-100.
Because Whitesides possessed probable cause to arrest Gantt for
each of the charged offenses, Gantt cannot establish any unreasonable
seizure in violation of the Fourth Amendment.7 Having concluded
that Gantt has not demonstrated any constitutional violation, it
becomes unnecessary to consider whether the right at issue was
clearly established such that "it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted." Saucier,
533 U.S. at 202.
III.
Gantt next claims that the district court erred by entering summary
judgment in favor of Whitaker and Whitesides (Appellees) on his
official capacity claim. As explained above, Gantt is unable to show
any constitutional violation. Thus, his official capacity claim fails as
a matter of law. See Belcher v. Oliver, 898 F.2d 32, 36 (4th Cir. 1990)
("Because it is clear that there was no constitutional violation we need
not reach the question of whether a municipal policy was responsible
for the officers’ actions."). Moreover, even assuming that Whitesides
violated Gantt’s constitutional rights, Gantt’s official capacity claim
fails because Gantt has not submitted any evidence that his arrest was
7
In fact, other courts have held that an officer must have probable
cause for at least one charge for an arrest on multiple charges to with-
stand a Fourth Amendment challenge. See, e.g., Barry v. Fowler, 902
F.2d 770, 773 n.5 (9th Cir. 1990) (holding that an officer need only show
probable cause for one of the charged offenses for a seizure to be consti-
tutional, even if the defendant was arrested for more than one offense);
Edwards v. City of Philadelphia, 860 F.2d 568, 575-76 (3d Cir. 1988)
(same) (citing Lynn v. Garcia, 531 F.2d 855, 862 (8th Cir. 1976)).
GANTT v. WHITAKER 13
the result of an unconstitutional or illegal county policy, custom, ordi-
nance, regulation, or decision. See Monell v. Dep’t of Soc. Serv., 436
U.S. 658, 694 (1978) ("[A] local government may not be sued under
§ 1983 for an injury inflicted solely by its employees or agents.
Instead, it is when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983."); Zepp v. Rehr-
mann, 79 F.3d 381, 385 (4th Cir. 1996) ("Because municipal liability
cannot rest on the doctrine of respondeat superior, Zepp’s § 1983
claims against Harford County and the defendants in their official
capacities must fail."). Accordingly, the district court did not err in
granting summary judgment in favor of Appellees with respect to
Gantt’s official capacity claim.
IV.
Gantt’s final claim of error involves a newspaper article that he
submitted in response to Appellees’ motion for summary judgment.
The article contained statements allegedly made by Whitaker about
Gantt’s arrest. (Appellant’s Br. at 5.) Appellees filed a motion to
strike the article as inadmissible hearsay, which the district court
granted. (J.A. at 894-95.) Gantt argues that this decision was errone-
ous. In the alternative, Gantt argues that the district court should have
allowed him leave to depose the author of the article. We review a
district court’s evidentiary and procedural rulings for an abuse of dis-
cretion. Persinger v. Norfolk & Western Ry. Co., 920 F.2d 1185, 1187
(4th Cir. 1990).
This circuit has consistently held that newspaper articles are inad-
missible hearsay to the extent that they are introduced "to prove the
factual matters asserted therein." United States v. ReBrook, 58 F.3d
961, 967 (4th Cir. 1995). Gantt sought to introduce the article for this
impermissible purpose and failed to establish the prerequisites for
applicability of an exception to the hearsay rule. Thus, the district
court did not abuse its discretion by excluding the article. Md. High-
ways Contractors Ass’n v. Maryland, 933 F.2d 1246, 1251 (4th Cir.
1991) ("[H]earsay evidence, which is inadmissible at trial, cannot be
considered on a motion for summary judgment.").
14 GANTT v. WHITAKER
Moreover, the district court did not abuse its discretion by denying
Gantt’s request for leave to depose the author of the newspaper article
after the discovery period had closed. See RGI, Inc. v. Unified Indus.,
Inc., 963 F.2d 658, 662 (4th Cir. 1992) (noting that the trial court pos-
sesses discretion to determine when to allow supplemental material to
resolve a summary judgment motion). Nor did the district court err by
denying Gantt’s motion for voluntary dismissal. Phillips USA, Inc. v.
Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996) ("We agree with
the district court that a party should not be permitted to avoid an
adverse decision on a dispositive motion by dismissing a claim with-
out prejudice."). Gantt’s arguments to the contrary are unpersuasive.
V.
For the foregoing reasons, the judgment of the district court is
affirmed.
AFFIRMED