Shawn Massey v. J.J. Ojaniit , 759 F.3d 343 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1460
SHAWN MASSEY,
Plaintiff – Appellant,
v.
J. J. OJANIIT, Charlotte-Mecklenburg Police Officer; GERALD
ESPOSITO, Charlotte-Mecklenburg Police Officer; TOM G.
LEDFORD, Charlotte-Mecklenburg Police Officer; JOHN AND
JANE DOES, #1-10, Charlotte-Mecklenburg Police Officers,
Defendants – Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:11-cv-00477-RJC-DCK)
Argued: March 19, 2014 Decided: July 21, 2014
Before MOTZ, KING, and THACKER, Circuit Judges.
Affirmed in part and dismissed in part by published opinion.
Judge King wrote the opinion, in which Judge Motz and Judge
Thacker joined.
ARGUED: James Earl Coleman, Jr., DUKE UNIVERSITY SCHOOL OF LAW,
Durham, North Carolina, for Appellant. James P. Cooney, III,
WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Charlotte, North
Carolina; Daniel Edward Peterson, CITY ATTORNEY'S OFFICE FOR THE
CITY OF CHARLOTTE, Charlotte, North Carolina, for Appellees. ON
BRIEF: Lori R. Keeton, PARKER POE ADAMS & BERNSTEIN, Charlotte,
North Carolina, for Appellees.
KING, Circuit Judge:
In early 2010, plaintiff Shawn Massey was released from a
North Carolina prison after a state court in Mecklenburg County
struck five verdicts that had been rendered against him in 1999.
Following his release, Massey initiated this civil action
against officers of the Charlotte-Mecklenburg Police Department
under 42 U.S.C. § 1983 and North Carolina law, alleging, inter
alia, that they had fabricated evidence that led to his arrest,
convictions, and nearly-twelve-year incarceration. The three
named defendants — Officers J. J. Ojaniit, Gerald Esposito, and
Tom G. Ledford — successfully moved in the district court for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. Massey has appealed the court’s
judgment, and, as explained below, we affirm as to Ojaniit and
Esposito and dismiss the appeal as to Ledford. 1
1
Massey’s complaint also asserts claims against “John and
Jane Does, #1-10.” The district court dismissed those claims
without prejudice, invoking our decision in Schiff v. Kennedy.
See 691 F.2d 196, 198 (4th Cir. 1982) (explaining that, “if it
does not appear that the true identity of an unnamed party can
be discovered through discovery or through intervention by the
court, the court could dismiss the action without prejudice”
(footnote omitted)). On appeal, Massey does not contest the
dismissal of his claims against the unnamed defendants.
2
I.
On September 23, 2011, Massey filed his complaint in the
Western District of North Carolina, alleging § 1983 claims for
violation of due process under the Fifth and Fourteenth
Amendments, unreasonable seizure and malicious prosecution under
the Fourth and Fourteenth Amendments, and conspiracy to
contravene his constitutional rights. The complaint also
asserts state law claims for obstruction of justice, false
imprisonment, malicious prosecution, and conspiracy. Officers
Ojaniit, Esposito, and Ledford separately answered the complaint
in November 2011, and shortly thereafter each moved for a Rule
12(c) judgment on the pleadings. In their motions, the officers
contended that the complaint failed to state any claim against
them upon which relief could be granted, and that they were
entitled to qualified immunity. Although a magistrate judge
recommended granting Ledford’s Rule 12(c) motion and denying
those of Ojaniit and Esposito, see Massey v. Ojaniit, No. 3:11-
cv-00477 (W.D.N.C. Aug. 17, 2012), ECF No. 44 (the “Report”),
the district court granted all three motions and dismissed the
complaint in its entirety, see Massey v. Ojaniit, No. 3:11-cv-
00477 (W.D.N.C. Mar. 29, 2013), ECF No. 52 (the “Order”). 2
2
The Report is found at J.A. 447-64, and the Order at J.A.
465-94. (Citations herein to “J.A. __” refer to the contents of
the Joint Appendix filed by the parties in this appeal.)
3
A.
In conducting its analysis, the district court recognized
that “Rule 12(c) motions are governed by the same standard as
motions brought under Rule 12(b)(6).” Order 12 (citing Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). As
such, the court deemed itself obliged to “‘accept as true all
well-pleaded allegations’” and to “‘view the complaint in a
light most favorable to [Massey].’” Id. (quoting Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). The court
also observed, however, that it “need not accept allegations
that ‘contradict matters properly subject to judicial notice or
[by] exhibit.’” Id. (quoting Blankenship v. Manchin, 471 F.3d
523, 529 (4th Cir. 2006)).
Open to the district court’s consideration were Massey’s
complaint; the officers’ answers thereto; matters of public
record; exhibits to the answers (as there were no exhibits to
the complaint); and exhibits to the Rule 12(c) motions that were
integral to the complaint and authentic. See Order 12-13
(citing Fed. R. Civ. P. 10(c); Philips v. Pitt Cnty. Mem’l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). The court gave
significant attention to the transcript of Massey’s 1999
criminal trial, see J.A. 91-436, underscoring that the
transcript was “a public record whose authenticity is not in
dispute” and had “been submitted as an exhibit [to the officers’
4
answers].” See Order 16 n.4. Additionally, there are repeated
references to the 1999 trial transcript in Massey’s complaint.
1.
As the complaint, the 1999 trial transcript, and other
exhibits reflect, Emerald Bay Apartments resident Samantha Wood
contacted the Charlotte–Mecklenburg Police Department on May 22,
1998, and reported that she and her two young children had
arrived home at about 10:00 a.m. to find an armed man at the
doorway of their apartment. The man held a gun to Wood’s
eighteen-month-old daughter’s head, pushed the family inside the
apartment, and attempted to rape Wood. Because Wood was
menstruating, the man ceased that pursuit and proceeded to
search for money, inducing Wood to hand over sixty dollars from
her purse. On then exiting the apartment, the man warned Wood
that if she called the police, he would kill her and her family.
The man spent approximately thirty minutes in the apartment.
Despite her assailant’s threat, Wood called the police, and
Officers Ojaniit and Esposito were promptly dispatched to the
crime scene. Ojaniit documented Wood’s description of the
culprit as a 5ʹ9ʺ, 180-pound black man who wore “his hair pulled
back from his face and (4) small braids on the back of his
head.” J.A. 73 (May 22, 1998 report of Ojaniit attached as
exhibit to officers’ answers). The report further reflects that
5
Wood described the man as wearing a red shirt and blue denim
shorts.
The following day, the two officers returned to the 250-
unit apartment complex in search of witnesses. The property
manager, Theresa Savall, reported that she had encountered a
black man in his twenties, approximately 5’11” and at least 165
pounds, as she was walking around the complex between 10:00 and
11:00 a.m. the previous day. Because Savall stated that the man
approached her after exiting from the rear patio area of Unit
5038-C, Officer Esposito sought to interview the resident of
that apartment, April Pride. After Esposito misinformed Pride
that he was investigating a noise complaint, Pride advised
Esposito that her friend Shawn Massey had spent the previous
night in her apartment. According to Esposito’s report, Pride
described Massey as being twenty-five years old and “wear[ing]
his hair pulled back with 4 or 5 braids.” J.A. 75 (May 23, 1998
report of Esposito attached as exhibit to officers’ answers).
That description was “almost verbatim the same description that
Ms. Wood had given of her assailant’s hairstyle.” Compl. ¶ 19.
Officer Ojaniit thereafter transported Wood to the police
station to review a six-photograph array that had been prepared
by Officer Ledford and that included a mug shot of Massey taken
at the time of a previous arrest. See J.A. 76 (photographic
lineup attached as exhibit to officers’ answers). Ojaniit
6
showed Wood the lineup, and Wood selected Massey’s photo as
“looking the most like” her assailant. Compl. ¶ 20 (emphasis
added). Ojaniit wrote in his report, however, that Wood said
that Massey’s photo “looked like the suspect except that the
suspect had longer hair with braids and he did not have a
beard.” J.A. 77 (emphasis added) (May 23, 1998 report of
Ojaniit attached as exhibit to officers’ answers). Three days
later, on May 26, 1998, Ledford presented the same array of
photos to Savall, who identified Massey as the person who had
spoken to her at the apartment complex on the morning of May 22,
1998. 3
2.
Based on the witnesses’ photo identifications of Massey and
Pride’s statements placing him near the crime scene, Officer
Ledford secured arrest warrants on July 7, 1998, charging Massey
with one count each of robbery with a dangerous weapon and
felonious breaking and entering, plus three counts of second-
degree kidnapping. See J.A. 78-85 (arrest warrants attached as
exhibit to answers of Officers Ojaniit and Esposito). On
September 8, 1998, a grand jury in Mecklenburg County returned
3
Officer Ledford’s report of May 26, 1998, documenting
Savall’s identification of Massey in the photographic lineup,
was attached as an exhibit to Ledford’s answer but is not
included in the Joint Appendix.
7
five indictments against Massey. See id. at 86-90 (indictments
attached as exhibit to answers of Ojaniit and Esposito). Massey
was tried on the consolidated indictments about a year
thereafter, beginning on September 13, 1999.
During the trial, the prosecution’s witnesses included
Wood, Savall, Pride, and Officers Ojaniit and Esposito. Wood
detailed the events of May 22, 1998, and described her assailant
as having “braids in his hair, with five hanging down.” J.A.
136. Prompted by the prosecutor to specify whether “the braids
[went] all through his hair or were . . . just on the back or
just on the sides,” Wood testified that the braids “went
through.” Id. at 137. In other words, Wood indicated that her
assailant’s hair was braided in what are commonly known as
“cornrows.” See Compl. ¶ 2. She also stated that her assailant
wore a red, jersey-like shirt with hurricane symbols on it.
Wood then made a positive in-court identification of Massey as
her assailant. According to Wood, although Massey now had short
hair, she recognized him from his facial features, height, and
voice.
Savall described to the jury the man who had approached her
at the Emerald Bay Apartments on the morning of May 22, 1998,
explaining that “he was acting kind of hyper” and made comments
to her such as, “‘Could we go out,’” and “‘Baby, you look
good.’” J.A. 166-67. Savall testified that the man was wearing
8
an orange-and-white jersey with long pants similar to jeans —
not the red jersey and denim shorts that Wood said her attacker
wore. Savall did not notice the man’s hair during their three-
to-four-minute encounter because he was wearing a hat. More
specifically, she did not “recall any braids.” Id. at 176.
Savall was “fairly certain” that she had accurately recognized
the man in the photo lineup, id. at 172, and she made a positive
in-court identification of Massey.
Pride testified next for the prosecution, confirming that
Massey, her friend of about ten years, had stayed in her
apartment on the night of May 21, 1998, and was still there when
she left for work the next day, at approximately 6:45 a.m.
While being cross-examined by the defense, Pride could not
recall Massey ever having braids and stated that Massey wore a
“low,” or short, haircut, including on May 22, 1998. See J.A.
190-91. Pride’s evidence thus conflicted with Officer
Esposito’s report of his May 23, 1998 interview with Pride,
insofar as the report indicated that Pride described Massey as
having hair in four or five braids. On redirect examination by
the prosecutor, Pride testified that she did not recall having
so advised Esposito when he interviewed her. For his part,
Esposito testified that he would not have recorded Pride as
describing Massey with braids if Pride had not said that in her
interview. The trial court gave a limiting instruction with
9
respect to Esposito’s report: the jury could consider it for
the purpose of corroborating Pride’s testimony, “if indeed . . .
it does corroborate her testimony,” but not “for other
purposes.” Id. at 206.
Later, during his direct and cross-examinations, Officer
Ojaniit was questioned about Wood’s identification of Massey in
the photographic lineup of May 23, 1998. Ojaniit acknowledged
that, although his report reflected that Wood chose Massey’s
photo as looking “like” the suspect, Wood had actually said that
the photo looked “the most like” her assailant. See J.A. 297-
98, 304-05. The defense challenged the notion that “looking the
most like someone is . . . a positive I.D.,” prompting Ojaniit
to respond that “that’s a question you have to ask [Wood].” Id.
at 305.
After the prosecution rested, the defense recalled Pride to
the witness stand. She testified that she was “positive” that
Massey did not have braids in his hair on May 22, 1998, and she
reiterated that she had not made any contrary statement to
Officer Esposito. See J.A. 377-78. In addition to Pride, the
defense called four of Massey’s friends and family members to
testify that Massey never wore braids. Another defense witness
was Brady Dorsey, the bookkeeper for Massey’s employer, Dorsey
Concrete. Dorsey, who had known Massey since Massey was a small
10
child, also testified that Massey had never had braids or long
hair.
Additionally, relevant to the alibi that Massey sought to
establish, Dorsey produced a payroll journal showing that Massey
worked eight hours on May 22, 1998, beginning at around 7:00
a.m. Dorsey elaborated that he had transported Massey from
Graymont Road (where Dorsey and Massey separately resided) to
the job site. According to Dorsey, he and Massey departed
Graymont sometime between 6:40 and 6:55 a.m. Dorsey’s evidence
was thus inconsistent with Pride’s testimony, which placed
Massey in her apartment several miles from Graymont at about
6:45 a.m.
On September 17, 1999, the jury convicted Massey on all
five charges. The trial court thereafter sentenced Massey to
103 to 133 months in prison for robbery with a dangerous weapon,
plus a consecutive term of 34 to 50 months for the remaining
four offenses. Massey’s convictions and sentences were later
affirmed by the Court of Appeals of North Carolina. See State
v. Massey, No. COA99-557 (N.C. Ct. App. Feb. 20, 2001) (attached
as exhibit to Rule 12(c) motions of Officers Ojaniit and
Ledford).
3.
In the mid-2000s, the Wrongful Conviction Clinic at Duke
University (the “Clinic”) began investigating Massey’s case.
11
See Compl. ¶¶ 32-33. The Clinic obtained a series of mug shots
of Massey taken on seven occasions between April 18, 1991, and
May 29, 1998. Each of the photos — including one taken on March
9, 1998 — showed Massey with short hair. After examining the
photos, two professional barbers made affidavits that Massey
could not have grown his hair long enough to have it braided in
cornrows between March 9, 1998, and the date of the crimes
against Wood and her children, May 22, 1998. Furthermore,
according to the barbers, if Massey had cornrows on May 22,
1998, the lines in his scalp left by the braiding would have
been visible in his May 29, 1998 photo, but no such lines were
apparent. The Clinic also interviewed Wood and discovered that,
despite her unequivocal identification of Massey during the
trial, she had expressed doubt to the prosecutor that Massey was
her assailant after she first saw him in court, before hearing
him speak and further observing him at a pretrial hearing.
Wood’s initial reservations were not conveyed to defense
counsel.
The Clinic presented its investigation to the District
Attorney of Mecklenburg County. As a result, on May 5, 2010,
the prosecutor moved in state court to set aside the jury’s
verdicts against Massey and have him released from custody. The
motion explained that the evidence uncovered by the Clinic made
“it likely that a jury would conclude that although there is
12
substantial evidence placing [Massey] in the area and
identifying him as the perpetrator, there is reasonable doubt
about whether he committed the offense.” J.A. 65 (motion
attached as exhibit to officers’ answers). In granting the
prosecutor’s motion, the court concluded that, “[g]iven the
totality of the circumstances that now exist[] in this case, if
the jury had all the facts that are now available, it cannot be
said with certainty that the jury would have reached the same
conclusion.” State v. Massey, No. 98-CRS-033738(L), slip op. at
4 (N.C. Super. Ct. May 6, 2010) (attached as exhibit to
officers’ answers). The court therefore struck the five
verdicts against Massey and ordered that he be released
immediately from custody. Massey was freed that same day.
B.
In these post-release civil proceedings, the crux of
Massey’s § 1983 and state law claims is that he was wrongfully
arrested, convicted, and incarcerated as a result of the
officers’ fabrication of evidence. Specifically, Massey’s
claims are based on two allegedly falsified reports, both of May
23, 1998: Officer Esposito’s report that Pride described Massey
as “wear[ing] his hair pulled back with 4 or 5 braids,” J.A. 75,
and Officer Ojaniit’s report that Wood stated that Massey’s
photo “looked like the suspect,” id. at 77. By his Report of
August 17, 2012, addressing the officers’ Rule 12(c) motions,
13
the magistrate judge recommended the dismissal of Massey’s
claims against Officer Ledford, explaining that the complaint
was “completely devoid of any factual allegations that would
support claims of wrongdoing” with respect to him. See Report
17. The magistrate judge further recommended, however, that the
Rule 12(c) motions of Ojaniit and Esposito be denied, as Massey
had “stated plausible allegations of constitutional violations”
perpetrated by those two defendants, and it would be “premature
to grant their requests for judgment.” Id.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the
Federal Rules of Civil Procedure, Officers Ojaniit and Esposito
timely objected to the Report. Massey responded to Ojaniit’s
and Esposito’s objections, urging the district court to allow
his claims against those defendants to proceed. Massey’s
response explicitly renounced any objection, however, to the
magistrate judge’s recommendation that the claims against
Officer Ledford be dismissed. Massey therefore asked the court
to adopt the Report in full.
For the reasons explained in its Order of March 29, 2013,
the district court opted instead to grant all three Rule 12(c)
motions and dismiss Massey’s complaint in its entirety. The
court determined, applying the standard of Rule 12(b)(6), that
Massey had failed to state a § 1983 claim against Officer
Ojaniit or Officer Esposito on which relief can be granted.
14
Accordingly, the court concluded that those officers were
entitled to qualified immunity under the first step of the two-
step procedure spelled out in Saucier v. Katz, 533 U.S. 194(2001); under that step, “a court must decide whether the facts
that a plaintiff has alleged or shown make out a violation of a
constitutional right.” See Pearson v. Callahan, 555 U.S. 223,
232 (2009) (citing Fed. R. Civ. P. 12(b)(6), 12(c), 50, 56).
Without addressing Massey’s acquiescence to the dismissal of his
claims against Officer Ledford, the district court similarly
ruled that Ledford was entitled to qualified immunity in the
absence of any colorable § 1983 claim being stated against him.
Finally, again applying the Rule 12(b)(6) standard, the court
dismissed the state law claims against all three defendants for
failure to state a claim on which relief can be granted.
Massey timely noted this appeal from the district court’s
judgment, and we possess jurisdiction pursuant to 28 U.S.C.
§ 1291. He challenges the dismissal of his claims against not
only Officers Ojaniit and Esposito, but also Officer Ledford.
II.
A.
We begin with Massey’s attempt to revive his claims against
Officer Ledford. As noted above, Massey unequivocally advised
the district court that he did not object to the Report insofar
15
as the magistrate judge recommended the granting of Ledford’s
motion for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c). Massey nevertheless now maintains that
he can appeal the district court’s entry of judgment in
Ledford’s favor. Our precedent, however, is “replete with
warnings that the consequence of failing to file objections [to
a magistrate judge’s report] is waiver of the right to appeal.”
Wells v. Shriners Hosp., 109 F.3d 198, 199 (4th Cir. 1997)
(listing cases).
It is no help to Massey that the district court conducted a
de novo review of the magistrate judge’s recommendations with
respect to Officer Ledford, because such review cannot cure the
failure to properly and timely object. The Supreme Court’s
decision in Thomas v. Arn, 474 U.S. 140 (1985), is instructive.
There, the Court held that “a court of appeals may exercise its
supervisory powers to establish a rule that the failure to file
objections to the magistrate’s report waives the right to appeal
the district court’s judgment.” Thomas, 474 U.S. at 142. The
Court also affirmed the Sixth Circuit’s application of such a
rule to Thomas, who was deemed to have waived appellate review
by failing to object to a magistrate judge’s report, even though
the district court had conducted a subsequent de novo review of
the entire record and dismissed Thomas’s habeas corpus petition
on the merits. See id. at 144-45. We likewise conclude that
16
Massey has waived his right to appeal the judgment in Ledford’s
favor. Accordingly, we dismiss Massey’s appeal as to Ledford.
B.
Next, we review the district court’s disposition of the
Rule 12(c) motions of Officers Ojaniit and Esposito. As a
threshold matter, we address Massey’s contention that the
court’s consideration of the officers’ exhibits — particularly
the transcript of the 1999 criminal trial — “went far beyond the
narrow circumstance in which a court can rely upon documents
attached to pleadings without converting a Rule 12(c) motion
into one for summary judgment.” Br. of Appellant 28. Notably,
prior to issuing his Report, the magistrate judge had denied
Massey’s request to strike the officers’ exhibits or,
alternatively, to convert their Rule 12(c) motions to summary
judgment motions.
Massey’s primary grievance with respect to the district
court’s reliance on the 1999 trial transcript is that the
transcript is “‘neither a “fact,” nor was it construed in the
light most favorable to [him].’” Br. of Appellant 29 (quoting
Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th
Cir. 2013)). We recently reiterated in Clatterbuck that, in
disposing of a Rule 12(c) motion, “courts may consider relevant
facts obtained from the public record, so long as these facts
are construed in the light most favorable to the plaintiff along
17
with the well-pleaded allegations of the complaint.” 708 F.3d
at 557 (internal quotation marks omitted) (citing Fed. R. Civ.
P. 12(d)). Contrary to Massey’s assertion of error, the
district court’s consideration of the 1999 trial transcript did
not run afoul of Clatterbuck or Rule 12(d). Rather, the court
viewed the transcript as a “complete account of the testimony
and evidence offered at trial,” Order 5 n.2, and recognized that
the transcript’s presence in the record meant that certain
“facts (i.e. the nature of the testimony and evidence offered at
trial) are not in dispute,” id. at 16 n.4. Significantly, the
court refrained from deciding any issue of the 1999 trial and
“form[ed] no judgment as to the credibility of any witness.”
See id. at 5 n.2. Moreover, Massey does not dispute the
accuracy or authenticity of the transcript; rather, he
extensively quotes from it in his complaint. See Compl. ¶¶ 24-
31.
In these circumstances, we approve of the district court’s
consideration of the 1999 trial transcript, as well as other
exhibits to the officers’ answers and Rule 12(c) motions,
discussed supra Part I.A. Indeed, as part of our de novo review
of the court’s Rule 12(c) rulings, see Butler v. United States,
702 F.3d 749, 751-52 (4th Cir. 2012), we independently consider
those same documents. Cf. Philips v. Pitt Cnty. Mem’l Hosp.,
572 F.3d 176, 180 (4th Cir. 2009) (“In reviewing a Rule 12(b)(6)
18
dismissal, we may properly take judicial notice of matters of
public record. We may also consider documents attached to the
complaint, as well as those attached to the motion to dismiss,
so long as they are integral to the complaint and authentic.”
(citations omitted)).
C.
Turning to the merits of the district court’s award of Rule
12(c) judgments on the pleadings to Officers Ojaniit and
Esposito, our de novo review requires us to apply the standard
for a Rule 12(b)(6) motion. See Butler, 702 F.3d at 751-52. In
so doing, we are mindful that “[a] Rule 12(c) motion tests only
the sufficiency of the complaint and does not resolve the merits
of the plaintiff’s claims or any disputes of fact.” Drager v.
PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014). Like the
district court, we are required to accept all well-pleaded
allegations of Massey’s complaint as true and draw all
reasonable factual inferences in his favor. See Edwards v. City
of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Nevertheless,
we are not obliged to accept allegations that “represent
unwarranted inferences, unreasonable conclusions, or arguments,”
or that “contradict matters properly subject to judicial notice
or by exhibit.” Blankenship v. Manchin, 471 F.3d 523, 529 (4th
Cir. 2006) (internal quotation marks omitted).
19
In applying the foregoing standards, the complaint will
survive only if it “states a plausible claim for relief.” See
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Because Officers
Ojaniit and Esposito have asserted qualified immunity with
respect to Massey’s § 1983 claims, our inquiry is whether Massey
has “plead[ed] factual matter that, if taken as true, states a
claim that [the officers] deprived him of his clearly
established constitutional rights.” See id. at 666. That is,
we must take the two-step qualified immunity analysis into
account, assessing (1) “whether the facts that [Massey] has
alleged . . . make out a violation of a constitutional right,”
and, if so, (2) “whether the right was clearly established at
the time of [the officers’] alleged misconduct.” See Pearson v.
Callahan, 555 U.S. 223, 232 (2009) (internal quotation marks
omitted).
Like the district court, we conclude under the first step
of the qualified immunity analysis — with respect to each of
Massey’s § 1983 claims — that he has failed to state a claim on
which relief can be granted, and thus do not proceed to the
second step. We also agree with the district court that Massey
has not pleaded any colorable state law claim. 4
4
Following oral argument, Massey moved under Federal Rule
of Appellate Procedure 27(a)(1) to file a supplemental brief
addressing the significance of Wood’s trial testimony clarifying
(Continued)
20
1.
The § 1983 claim in Count I of the complaint alleges
violations of Massey’s right to due process, and thus concerns
the alleged use of fabricated evidence at trial to obtain his
convictions. 5 The Fourteenth Amendment protects “against
deprivations of liberty accomplished without due process of
law.” Baker v. McCollan, 443 U.S. 137, 145 (1979) (internal
quotation marks omitted). We have recognized a due process
“‘right not to be deprived of liberty as a result of the
fabrication of evidence by a government officer acting in an
investigating capacity.’” Washington v. Wilmore, 407 F.3d 274,
282 (4th Cir. 2005) (quoting Zahrey v. Coffey, 221 F.3d 342, 349
(2d Cir. 2000)); see also, e.g., Halsey v. Pfeiffer, 750 F.3d
273, 295-96 (3d Cir. 2014) (“[B]y fabricating evidence for use
in a criminal prosecution, a state actor would violate a
that her assailant wore cornrows, rather there mere braids at
the back of his head. We grant that motion and have considered
the supplemental brief in rendering today’s decision.
5
The complaint asserts claims against state, rather than
federal, actors. Thus, although Count I refers to both the
Fifth and Fourteenth Amendments, Massey’s relevant due process
protections are found in the Fourteenth, rather than the Fifth,
Amendment. See, e.g., United States v. Hornsby, 666 F.3d 296,
310 (4th Cir. 2012) (explaining that “the Fourteenth Amendment’s
Due Process Clause is a limitation on state conduct,” while the
“due process protections against the federal government are
found in the Fifth Amendment”).
21
defendant’s [Fourteenth Amendment due process] rights regardless
of whether or not the state actor violated other constitutional
rights of the defendant.”).
Fabrication of evidence alone is insufficient to state a
claim for a due process violation; a plaintiff must plead
adequate facts to establish that the loss of liberty — i.e., his
conviction and subsequent incarceration — resulted from the
fabrication. See Washington, 407 F.3d at 282-83 (citing Zahrey,
221 F.3d at 349). The plaintiff must also be able to show that,
despite any intervening acts of independent decision-makers, the
“conviction was a reasonably foreseeable result of [the] initial
act of fabrication.” Id. at 283 (citing, inter alia, Jones v.
City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988) (“[A]
prosecutor’s decision to charge, a grand jury’s decision to
indict, a prosecutor’s decision not to drop charges but to
proceed to trial — none of these decisions will shield a police
officer who deliberately supplied misleading information that
influenced the decision.”)). As Judge Motz explained in Evans
v. Chalmers, “constitutional torts, like their common law
brethren, require a demonstration of both but-for and proximate
causation.” 703 F.3d 636, 647 (4th Cir. 2012).
a.
Beginning with Officer Esposito, we take as true that he
fabricated the portion of his May 23, 1998 report recording
22
Pride’s statement that Massey wore braids. We thus consider
whether Massey has pleaded adequate facts to support a causal
connection between that fabrication and his convictions.
At the outset, we must reject the main premise of Massey’s
case against the officers: that “if [he] did not wear his hair
in cornrows on May 22, 1998, he could not have been the armed
black man who robbed and kidnaped Ms. Wood and her children.”
See Br. of Appellant 30-31; see also id. at 20 (asserting that
Massey “was exonerated in May 2010, when the equivalent of non-
biological DNA excluded him as a suspect in the crimes”). The
problem for Massey, as the district court observed, is that he
raises to the level of certainty that the crime could
only have been committed by a person with braids.
This is an overstatement of an otherwise valid
argument. That an eyewitness described an assailant
as having braids does not, by operation of nature or
law, exonerate all suspects who do not have braids; it
merely calls into question that aspect of the
description as applied against anyone not wearing
braids. The factors which influence a witness[’s]
memory and perception are myriad; . . . it is within
the realm of possibility that a person can accurately
identify another person even as their perception or
memory is incorrect as to certain aspects of that
person’s appearance.
Order 18 n.6. Indeed, although both Wood and Savall identified
Massey, they gave different descriptions of the clothes that he
wore at the time of the crimes. Such discrepancy did not hinder
the jury from finding Massey guilty beyond a reasonable doubt.
Similarly, the jury was not swayed by Massey’s short-hair
23
defense — perhaps because it believed that Massey in fact had
braids, perhaps because it thought that Wood misremembered
Massey’s hairstyle, or perhaps because it deemed his hair to be
non-dispositive in light of Wood’s identification of Massey from
his facial features, height, and voice.
Simply put, the central issue at trial was not whether
Massey had cornrows or any other type of braids. Rather, the
prosecution’s case focused on the positive in-court
identifications made by both Wood and Savall, as well as Pride’s
testimony contradicting Massey’s alibi and placing him at the
apartment complex the morning of the crimes. The prosecutor
initially did not question Pride about Massey’s hairstyle, and
addressed Officer Esposito’s report only after, on cross-
examination by the defense, Pride denied telling Esposito that
Massey wore braids. At most, despite the trial court’s
instruction that it was not to be used for impeachment purposes,
the report called Pride’s credibility into question. In these
circumstances, we agree with the district court that there is
not a “sufficiently strong [causal nexus] to bear the conclusion
that the statement fabricated by Officer Esposito caused the
conviction[s] of Shawn Massey.” See Order 20.
We further conclude that Massey’s convictions were not a
foreseeable consequence of the assumed fabrication. That is, it
is not plausible that Officer Esposito could have anticipated
24
that, by falsely stating that Pride told him Massey wore braids,
Massey not only would be included in the photographic lineup,
but also would be identified by two witnesses (including the
victim) — both by photo and in person at trial. In sum,
applying well-settled tort principles, we cannot say that the
fabrication was a but-for or proximate cause of Massey’s
convictions. Accordingly, we affirm the judgment in Esposito’s
favor on Count I.
b.
Turning to Massey’s Fourteenth Amendment claim against
Officer Ojaniit, we accept that Ojaniit misrepresented Wood’s
identification of Massey from the photo lineup, omitting the
words “the most” from Wood’s statement that Massey looked “the
most like” her assailant. That misrepresentation, Massey
contends, influenced the decisions of the prosecutor, grand
jury, and trial jury, thus leading to Massey’s convictions and
depriving him of due process of law.
We disagree. Even assuming that Wood did not truly
identify Massey in the photographic lineup, Savall unequivocally
selected Massey’s photo, and Pride placed him near the crime
scene. Furthermore, Wood positively identified Massey as her
assailant at trial. And, in his own trial testimony, Officer
Ojaniit mitigated any confusion about Wood’s initial
identification by accurately presenting Wood’s words to the
25
jury. As such, Massey has failed to plead facts to indicate
that Ojaniit’s fabrication caused his convictions or that the
convictions were the reasonably foreseeable result of the
fabrication. We thus affirm the judgment on Ojaniit’s behalf as
to Count I.
2.
Next, the § 1983 claim in Count II of the complaint alleges
malicious prosecution and unreasonable seizure, and thus focuses
on the fabricated evidence’s role in securing Massey’s arrest
and continuing his prosecution. 6 That claim is properly “founded
6
Count II alleges violations of Massey’s Fourth Amendment
right to be free from unreasonable seizures, a right enforceable
against the states by operation of the Fourteenth Amendment.
See Camara v. Mun. Court of City & Cnty. of San Francisco, 387
U.S. 523, 528 (1967). The distinction between the Fourteenth
Amendment due process claim in Count I (concerning Massey’s
convictions) and the Fourth Amendment claim in Count II
(focusing on his arrest) was recently explained by the Third
Circuit:
The boundary between Fourth Amendment and Fourteenth
Amendment claims is, at its core, temporal. The
Fourth Amendment forbids a state from detaining an
individual unless the state actor reasonably believes
that the individual has committed a crime — that is,
the Fourth Amendment forbids a detention without
probable cause. But this protection against unlawful
seizures extends only until trial. The guarantee of
due process of law, by contrast, is not so limited as
it protects defendants during an entire criminal
proceeding through and after trial.
Halsey, 750 F.3d at 291 (citations omitted); see also Jones, 856
F.2d at 994 (“[A]t some point after a person is arrested, the
question whether his continued confinement or prosecution is
(Continued)
26
on a Fourth Amendment seizure that incorporates elements of the
analogous common law tort of malicious prosecution.” Lambert v.
Williams, 223 F.3d 257, 262 (4th Cir. 2000). To state such a
Fourth Amendment claim, “we have required that [1] the defendant
have seized plaintiff pursuant to legal process that was not
supported by probable cause and [2] that the criminal
proceedings have terminated in plaintiff’s favor.” Durham v.
Horner, 690 F.3d 183, 188 (4th Cir. 2012) (internal quotation
marks omitted). As the officers have not contested that Massey
was seized or that the criminal proceedings terminated in his
favor, we focus solely on their contention that probable cause
existed to arrest Massey, even absent the alleged fabrications.
The Supreme Court has long made clear that “an indictment,
‘fair upon its face,’ returned by a ‘properly constituted grand
jury,’ conclusively determines the existence of probable cause.”
Durham, 690 F.3d at 188–89 (4th Cir. 2012) (quoting Gerstein v.
Pugh, 420 U.S. 103, 117 n.19 (1975)). “[N]otwithstanding the
conclusive effect” of an indictment, we have stressed that “a
grand jury’s decision to indict will not shield a police officer
who deliberately supplied misleading information that influenced
the decision.” Id. at 189 (internal quotation marks omitted).
unconstitutional passes over from the Fourth Amendment to the
due process clause.”).
27
Thus, while “intervening acts of other participants in the
criminal justice system,” such as an exercise of prosecutorial
discretion or the return of an indictment, generally “insulate a
police officer from liability,” Evans, 703 F.3d at 647, officers
may be liable to a wrongfully indicted defendant when they have,
e.g., lied to or misled the prosecutor, id. at 647-48.
False statements alone do not, however, run afoul of the
Fourth Amendment. See Wilkes v. Young, 28 F.3d 1362, 1365 (4th
Cir. 1994). To contravene the Constitution, “the false
statements or omissions must be ‘material,’ that is, ‘necessary
to the finding of probable cause.’” Miller v. Prince George’s
Cnty., Md., 475 F.3d 621, 628 (4th Cir. 2007) (alteration
omitted) (quoting Franks v. Delaware, 438 U.S. 154, 156 (1978)).
We determine materiality by “excis[ing] the offending
inaccuracies” and then assessing whether the “corrected”
evidence, excluding the misstatements, “would establish probable
cause.” Id. (internal quotation marks omitted). Furthermore,
the false statements must have been made “deliberately or with a
reckless disregard for the truth,” which may be proved by
showing that “when viewing all the evidence, the affiant must
have entertained serious doubts as to the truth of his
statements or had obvious reasons to doubt the accuracy of the
information he reported.” Id. at 627 (internal quotation marks
omitted).
28
It is on the materiality requirement that Massey’s Fourth
Amendment claim falls short. Though Massey alleges that
Officers Esposito and Ojaniit deliberately supplied fabricated
evidence, he has not pleaded facts adequate to undercut the
grand jury’s probable cause determination. That is, as the
district court determined, even “remov[ing] the fabricated
statement attributed to Officer Esposito and add[ing] the word
‘most’ to Officer Ojaniit’s written report, there still
exist[ed] sufficient probable cause to arrest Shawn Massey.”
Order 23 (emphasis omitted). The court further explained with
respect to Esposito’s fabrication:
Ultimately, it is a “fair probability” that a suspect
had committed a crime where the victim identifies the
suspect out of [a] six person photo lineup, a second
person independently identifies him (from the same six
person lineup) as having been near the scene of the
crime during the relevant period, and a third confirms
his identity and relates that she last saw him in the
vicinity of the crime area several hours earlier. The
discrepancies between the description by Wood and
Massey’s actual appearance, though relevant, do not
rise to the level to defeat probable cause. To obtain
the warrant, the officers needed only a fair
probability that Massey committed the crime against
Wood. The multiple identifications of Massey suffice
to exceed that threshold.
Id. As to Ojaniit, the court observed that “probable cause to
arrest Massey [does not] disappear[] upon the inclusion of the
word ‘most’ in [Ojaniit’s] report.” Id. at 25. We agree and
thus affirm the entry of judgment for Ojaniit and Esposito on
Count II.
29
3.
According to the § 1983 claim in Count III of the
complaint, the officers conspired to deprive Massey of his
constitutional rights. To establish a conspiracy claim under
§ 1983, a plaintiff “must present evidence that the [defendants]
acted jointly in concert and that some overt act was done in
furtherance of the conspiracy which resulted in [the]
deprivation of a constitutional right.” Hinkle v. City of
Clarksburg, W. Va., 81 F.3d 416, 421 (4th Cir. 1996). Because
Massey has not stated a claim for deprivation of a
constitutional right, his Count III conspiracy claim was
properly dismissed as to Officers Ojaniit and Esposito. See
Glassman v. Arlington Cnty., Va., 628 F.3d 140, 150 (4th Cir.
2010).
4.
The complaint finally alleges state law claims in Counts IV
and V for obstruction of justice, false imprisonment, malicious
prosecution, and conspiracy. The district court dismissed
Massey’s obstruction of justice claim in reliance on our
decision in Evans, where we recognized that,
[e]ven though North Carolina courts have interpreted
common-law obstruction of justice to include
fabrication of evidence, . . . we have not found — and
plaintiffs have not offered — any case from any
jurisdiction recognizing a common-law obstruction of
justice claim against a police officer for his actions
relating to a criminal proceeding.
30
703 F.3d at 658 (citation omitted). We therefore deemed it
unrealistic that North Carolina would uphold an obstruction of
justice claim in that context. Id. There has been a dearth of
North Carolina case law developed since Evans was decided.
Therefore, Evans controls this case as well.
Massey’s other state law claims fail under the same
rationale as their federal counterparts. To sustain a malicious
prosecution claim, a plaintiff must establish, inter alia, that
the defendant lacked probable cause to initiate the proceeding
against the plaintiff. See Best v. Duke Univ., 448 S.E.2d 506,
510 (N.C. 1994). False imprisonment also calls for the absence
of probable cause. See Moore v. Evans, 476 S.E.2d 415, 422
(N.C. Ct. App. 1996). As previously shown, the officers
possessed ample probable cause to arrest Massey, even absent the
fabricated evidence. Thus, Massey has not pleaded the elements
essential to a malicious prosecution or false imprisonment claim
under North Carolina law. Furthermore, without sufficiently
alleged wrongful acts, the conspiracy claim cannot survive. See
State ex rel. Cooper v. Ridgeway Brands Mfg., 666 S.E.2d 107,
115 (N.C. 2008). We therefore affirm the district court’s
dismissal of the state claims alleged in Counts IV and V of the
complaint.
31
III.
Pursuant to the foregoing, we affirm the judgment as to
Officers Ojaniit and Esposito, and we dismiss the appeal as to
Officer Ledford.
AFFIRMED IN PART
AND DISMISSED IN PART
32