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Robinson v. Miller

United States District Court, S.D. West Virginia, Charleston Division

July 27, 2018

GREGORY ROBINSON, Plaintiff,
v.
S.W. MILLER, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, CHIEF JUDGE.

         Pending before the Court, on remand from the Fourth Circuit, is Defendants' motion for summary judgment. (ECF No. 34.) For the reasons discussed herein, the Court DENIES Defendants' motion. (ECF No. 34.)

         I. BACKGROUND

         On September 10, 2015, the Court issued a memorandum opinion in the above-styled matter denying Defendants S.W. Miller (“Defendant Miller”), E.M. Peterson (“Defendant Peterson”), E.R. Moyer (“Defendant Moyer”), and City of South Charleston's (“Defendant City”) motion for summary judgment, (ECF No. 34), and granting in part and denying in part Plaintiff's motion for partial summary judgment, (ECF No. 36). (ECF No. 125.) On appeal, the Fourth Circuit vacated in part that memorandum opinion finding that this Court incorrectly applied a subjective standard in determining whether probable cause existed for Plaintiff's arrests and remanded the case so the Court can conduct an objective inquiry into probable cause. (ECF No. 134.)

         A. Factual Background

         On July 16, 2012, Defendant Miller, a patrolman with the South Charleston Police Department (the “Police Department”), was dispatched to the Walmart Supercenter in South Charleston, West Virginia (“Walmart”), in response to a report of employee theft. (ECF No. 39 at 2; see also ECF No. 97 at 1.) When he arrived at Walmart, Defendant Miller met with Paul Higginbotham―the Walmart Store's Asset Protection Manager (the “Walmart APM”). (ECF No. 39 at 2; ECF No. 97 at 1.) The Walmart APM reported to Defendant Miller that surveillance video showed three employees stealing Apple iPods. (ECF No. 39 at 2; ECF No. 97 at 1.) The Walmart APM then showed Defendant Miller surveillance video of two thefts. (ECF No. 39 at 3.)

         The second surveillance video is the only one that is relevant here. This video showed a theft that occurred on July 10, 2012. (Id. at 2.) The video depicted three Walmart Store employees―Hartwell, Davis, and Plaintiff―and, as in the first video, showed Hartwell removing iPods from a display case. (Id.; see also ECF No. 39 at 3.)

         Shortly after reviewing the videos, Defendant Miller interviewed Davis at Walmart. (ECF No. 39 at 3.) Defendant Miller later testified that Davis provided a statement to him at this time, in which Davis noted that “he knew . . . Hartwell was taking the iPods and even offered to give [Davis] one.” (ECF No. 34-3 at 42:19-43:22 (Miller Dep.).) Defendant Miller did not speak with either Hartwell or Plaintiff before leaving Walmart, as they “were both off work that day.” (ECF No. 39 at 3.)

         On July 18, 2012, Defendant Miller applied for a warrant for Hartwell and arrested him that same day. (ECF No. 97 at 2.) Either on or after this date, Hartwell provided the following signed statement on a Police Department investigative statement form (the “Hartwell Statement”):

[Plaintiff] and [Davis] talked me into doing it again. They were suppose [sic] to cover me and block the cameras under the agreement I would give them each one of the Ipods.

(ECF No. 34-7.)

         On July 19, 2012, Defendant Miller applied for arrest warrants for Davis and Plaintiff. (ECF No. 97 at 2; ECF No. 37 at 2.) As part of the warrant application for Plaintiff, Defendant Miller submitted a criminal complaint with an accompanying affidavit (the “First Warrant Application”). (ECF No. 34-1 (First Warrant Application).) This criminal complaint alleges that, “[o]n or about 07-12-2012 in Kanawha County, West Virginia, ” Plaintiff committed the offenses of embezzlement in violation of West Virginia Code § 61-3-20 and fraudulent schemes in violation of West Virginia Code § 61-3-24d. (Id. at 1.) This criminal complaint incorporates the attached First Warrant Affidavit, which was in all respects identical to the affidavits Defendant Miller submitted to procure the arrests of Hartwell and Davis and provides the following, in its entirety:

On Monday 16th day of July 2012, I was dispatched to Wal-Mart located at 2700 Mountaineer Blvd. for a report of employee stealing. Upon arrival I spoke with listed comp. Paul Higginbotham the store APM who stated that 3 employees had been stealing Apple IPods and accessories from the electronic department. Mr. Higginbotham stated that when he reviewed the surveillance videos on Thursday 12th day of July and saw that on Friday July 6th he saw [sic] listed suspect #1 Jeremy Hartwell and listed suspect #2 Jirald Davis were observed [sic] proceeding towards the MP3 player display case. At around 11:54 hours, both suspects begin to look around the department and act in a suspicious manner. Mr. Davis then turns his back to Mr. Hartwell who uses the department keys and enters the MP3 display case. While Mr. Hartwell enters the case Mr. Davis begins to stretch and places his arms above his head and continues to look around the department. As a customer's [sic] approaches Mr. Davis proceeds to their location and directs then [sic] away from the electronics counter and MP3 player display case.
Mr. Hartwell then enters the display case and begins to select Apple IPods where he is then observed concealing the merchandise into his left pocket. Mr. Davis then turns around and observes the activity taken [sic] place and selection and concealment of the merchandise. Mr. Hartwell continues to select additional IPods, also placing them into his pant pocket. After Mr. Hartwell finishes his selection and concealment both suspects walks [sic] away from the area.
The second incident happened on Tuesday July 10th were [sic] Mr. Hartwell was standing by the same display case. Mr. Hartwell then proceeded towards the MP3 display case around 2114 hours along with suspect #3 [Plaintiff] and Mr. Hartwell enters the case at 2115 hours and Mr. Davis immediately proceeds over to the same location where he begins to talk to [Plaintiff]. At 2116 hours Mr. Hartwell begins to select merchandise (IPods) from the display case concealing them into the right pants pocket and Mr. Davis continues to observe him and distract the other associate from noticing the activity. After concealing the items Mr. Hartwell closes the display case at 2117 hours and Mr. Davis proceeds to walk away towards the electronics register.
Mr. Higginbotham stated after reviewing several other days of surveillance video from Mr. Hartwell's shifts over previous weeks and Asset Protection working with ZMS Seth McCormick to verify on-hands and PI accuracy of Apple IPods in the display case and comparing to surveillance video of the selection and concealment of merchandise, an event value was entered into the case file of $1975.00 for a total of 8 items. I spoke with Mr. Davis in the LP office at Wal-Mart and before he could be given his Miranda's Warning he stated he knew Mr. Hartwell was taking the items and even offered to give him one but Mr. Davis stated he didn't take any and didn't help Mr. Hartwell. There are videos of all the items that were taken by Mr. Hartwell. I will be obtaining warrants on all 3 suspects for Embezzlement and Fraudulent Schemes.
On Tuesday 17th day of July 2012, I spoke with Greg Eads who works at Kanawha Valley Fine Jewelry #4 in Dunbar and he stated that Jeremy Hartwell had sold them a [sic] Apple Touch 64GB IPod and the numbers match with the ones that he stole from Wal-Mart. While looking at his other IPod in the case I found one that was similar to the one that Mr. Hartwell had sold them, the numbers match the ones that were stolen by Mr. Hartwell. Mr. Eads stated that a girl name [sic] Billie Joe Jones Ohio ID# RP283283 had sold it to them the same day that Mr. Hartwell sold his. This occurred at Wal-Mart located at 2700 Mountaineer Blvd. South Charleston, WV 25309 Kanawha County.

(ECF No. 34-1 at 2.) Defendant Miller did not provide any additional oath or affirmation detailing the facts surrounding these incidents other than the First Warrant Affidavit―and the accompanying criminal complaint―when procuring an arrest warrant for Plaintiff. (See ECF No. 35 at 2; ECF No. 97 at 2.)

         A Kanawha County magistrate judge subsequently issued warrants for Hartwell, Davis, and Plaintiff. (ECF No. 35 at 2.) The magistrate judge issued the warrant for Plaintiff (the “First Warrant”) based on the First Warrant Application. (Id.) Plaintiff's preliminary hearing was scheduled for August 8, 2012. (Id.) Neither the Walmart APM nor Defendant Miller appeared at the preliminary hearing. Thus, the charges were dismissed without prejudice. (Id.; see also ECF No. 37 at 5.)

         Sometime between August 8, 2012 and November 20, 2012, Defendants Peterson and Moyer spoke with the Walmart APM regarding Plaintiff. (ECF No. 39 at 5.) Defendant Peterson testified that the Walmart APM mentioned to Defendants Peterson and Moyer that he attempted to contact Defendant Miller following Plaintiff's August 8, 2012, but was unsuccessful. (See id.; see also ECF No. 34-5 at 128:8-15 (Peterson Dep.).) Defendant Peterson also testified that, during one such conversation, the Walmart APM asked Defendants Peterson and Moyer to “handle” the issue with Plaintiff. (See ECF No. 39 at 5; see also ECF No. 34-5 at 133:2-6 (Peterson Dep.).)

         Following these conversations, Defendants Peterson and Moyer consulted with one of two prosecutors―either Assistant Prosecuting Attorney Joey Spano or Assistant Prosecuting Attorney Reagan Whitmyer-by telephone before seeking a new arrest warrant for Plaintiff. (E.g., ECF No. 34-5 at 117.) Based on this conversation, the prosecutor told Defendants Peterson and Moyer to re-file charges against Plaintiff. (See id.)

         On November 20, 2012, Defendants Peterson and Moyer filed an arrest warrant application against Plaintiff (the “Second Warrant Application”). (ECF No. 35 at 2.) As with the First Warrant Application, the Second Warrant Application similarly included a criminal complaint with an accompanying affidavit. (ECF No. 34-2.) This second criminal complaint alleges that “[o]n or about 10, 12 [sic] July 2012 in Kanawha County, West Virginia, ” Plaintiff committed offenses “in violation of W.Va. Code . . . §61-3-20, §61-3-24d.” (Id. at 1.) The Second Warrant Affidavit also includes a “facts” section that is almost identical to the First Warrant Affidavit and provides the following, in its entirety:

On 16 July 2012, Ptlm. SW Miller was dispatched to Wal-Mart Located at 2700 Mountaineer Blvd. South Charleston, Kanawha County WV, for a report of employee theft. Upon arrival Miller spoke with Wal-Mart asset protection manager Paul Higginbotham (complainant) who states that three employees had been stealing Apple I Pods and accessories from the electronic department. Higginbotham stated that he reviewed video surveillance on 06 July 2012 and observed Jeremy Hartwell (co-defendant) and Jirald Davis (defendant) proceed toward the MP3 player display case in the electronic section of the store and begin to look around the area in a suspicious manner. Davis then turns his back to Hartwell who uses department keys and enters the MP3 display case. Hartwell enters the case and Davis begins to stretch and place his arms about his head while looking around the area. When a customer approaches the area Davis is observed directing their attention away from the electronics counter where Hartwell has selected an Apple I-Pod and concealed it in his left pocket. Davis then watches as Hartwell selects additional Apple I-Pods and conceals them in his pocket, after the selection and concealment of the Apple I-Pods both defendants then walk away from the area.
On 10 July 2012 Hartwell was observed on video surveillance by Higginbotham again at the same MP3 display case. Hartwell with [Plaintiff] (co-defendant) present again enters the case selecting and concealing Apple I-Pods into his right pant pocket. Davis again is immediately observed coming to the location, speaking with [Plaintiff], and appears to distract the other associates from noticing the activity.
Higginbotham states after completing their internal investigation that eight Apple I-Pods were taken with a total loss to Wal-Mart of $1975.00. On 17 July 2012 Miller recovered two of the Apple I-Pods from Greg Eads who works at Kanawha Valley Fine Jewelry and Loan in Dunbar. Eads states that Hartwell brought in one of the stolen Apple I-Pods in for sell [sic] and then the same day a female brought in another of the stolen I-Pods for sell [sic]. Both Hartwell and the female sold the items to KVP and were given $150.00 U.S. currency for each transaction. [Plaintiff] is charged with embezzlement and fraudulent schemes.

(Id. at 2-3.)

         A magistrate judge subsequently issued an arrest warrant for Plaintiff (the “Second Warrant”), as well as a warrant for Davis. (ECF No. 35 at 3; see also ECF No. 97 at 4.) On November 28, 2012, Plaintiff and Davis voluntarily turned themselves in and were arraigned. (ECF No. 97 at 4.) Their preliminary hearing was set for December 13, 2012. (Id.) At this preliminary hearing, Davis took a plea bargain. (Id.) However, Plaintiff asked for a continuance which was granted. (Id.)

         Plaintiff's preliminary hearing was held on January 10, 2013. (ECF No. 35 at 3.) Although Defendants Peterson and Moyer were present at the hearing, they were never called to testify. (ECF No. 97 at 4.) At the conclusion of this hearing, the magistrate judge dismissed the case without prejudice for lack of probable cause. (See id.; see also ECF No. 39 at 6.)

         B. Procedural Background

         On December 13, 2013, Plaintiff filed the instant Complaint against Defendants in the Circuit Court of Kanawha County, West Virginia, alleging the following five counts: deficient-affidavit, false arrest, and § 1983 malicious prosecution against Defendant Miller (Count I); deficient-affidavit, false arrest, and § 1983 malicious prosecution against Defendants Peterson and Moyer (Count II); § 1983 supervisory liability claim against Defendant City of South Charleston (“Defendant City”)[1] (Count III); state law malicious prosecution claim against Defendant Miller (Count IV); and state law malicious prosecution claim against Defendants Peterson and Moyer (Count V). (See ECF No. 1-2.)

         On December 22, 2014, Defendants filed a motion for summary judgment. (See ECF No. 34.) Plaintiff subsequently filed a motion for partial summary judgment. (See ECF No. 36.) In this Court's previous memorandum opinion on those motions, the Court granted in part Plaintiff's summary judgment motion, (ECF No. 36), insofar as it requested summary judgment on the deficient-affidavit claim against Defendant Miller in Count I and denied in part the motion insofar as it requested summary judgment on the deficient-affidavit claim against Defendants Peterson and Moyer in Count II. (ECF No. 125 at 77-78.) The Court further denied Defendants' motion, (ECF No. 34), in its entirety. (ECF No. 125 at 78.)

         The Court found that as to the deficient-affidavit claims contained in Counts I and II of the Complaint, both the First Warrant Affidavit and Second Warrant Affidavit lacked probable cause. (Id. at 25, 29-30.) Thus, the Court further found that Plaintiff satisfied the two elements of a § 1983 claim regarding the Individual Defendants' submission of the facially unconstitutional First Warrant Affidavit and Second Warrant Affidavit. (Id. at 27.) The Court established that Defendant Miller was not shielded from liability for the deficient-affidavit claim based on the doctrine of qualified immunity and granted Plaintiff's Motion for Summary Judgment on that claim in Count I. (Id. at 27, 30.) The Court left to the trier of fact whether Defendants Peterson and Moyer are entitled to qualified immunity as to the deficient-affidavit claim in Count II because (1) there is contradictory evidence as to whether Defendants Peterson and Moyer read the entirety of Plaintiff's file to the prosecutor with whom they consulted or merely provided a summary of the facts of the case, and (2) it is unclear whether the consultation occurred before or after they drafted the Second Warrant Affidavit, which edited an otherwise exculpatory statement from the First Warrant Affidavit. (See Id. at 41-44.)

         As to the malicious prosecution claims against the Individual Defendants contained in Counts I and II, [2] the Court determined that genuine issues of material fact existed “as to what Defendant Miller knew at the time he arrested Plaintiff” and as “to the knowledge of Defendants Peterson and Moyer at the time they arrested Plaintiff.” (Id. at 52, 55.) The Court found that this precluded a determination of whether the Individual Defendants had probable cause to arrest Plaintiff. (Id.) In determining whether the Individual Defendants were entitled to qualified immunity on these claims, the Court discussed the “‘objective legal reasonableness' of the Individual Defendants' actions in arresting Plaintiff.” (Id. at 57 (citing Messerschmidt v. Millender, 565 U.S. 535 (2012)).) The Court explained that “one situation where defendants will not be protected by the shield of qualified immunity when executing a warrant is ‘if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue.'” (Id. at 57-58 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986) (citation omitted)).) The Court found genuine issues of material fact as to “whether a reasonable police officer [in the position of the Individual Defendants] could have believed that there was probable cause to arrest Plaintiff.” (Id. at 59, 62-63.) Thus, the Court denied Defendants' motion for summary judgment insofar as it requested summary judgment on the § 1983 malicious prosecution claims in Counts I and II. (Id. at 59, 63.)

         The Defendants' motion further requested summary judgment on Counts III, IV, and V. The Court denied the motion related to Count III after finding that “the constitutional requirements pertaining to providing an oath or affirmation supporting a finding of probable cause for arrest warrants and having probable cause to arrest an individual are so obvious that a municipality's failure to train its officers regarding these constitutional limitations constitutes deliberate indifference” and that “there are genuine issues of material fact as to whether Defendant City does, in fact, train its officers regarding these constitutional limitations.” (Id. at 74.) The Court similarly denied Defendants' motion seeking summary judgment on Counts IV and V related to Plaintiff's common law malicious prosecution claims because it found genuine issues of material fact as to the third and fourth elements of a common law malicious prosecution claim. (See Id. at 75-77.) Specifically, the Court found that “the record is riddled with inconsistencies and questions of fact as to what knowledge the Individual Defendants possessed when they executed the respective arrests of Plaintiff.” (Id. at 76.) This precluded the Court from determining whether the Individual Defendants arrested Plaintiff without probable cause and with malice. (Id. at 77.)

         Defendants filed a notice of appeal on October 7, 2015, assigning error in the Court's memorandum opinion insofar as it granted Plaintiff's motion for partial summary judgment against Defendant Miller on the deficient-affidavit claim in Count I and denied Defendants' motion in its entirety. (ECF No. 129.) The Fourth Circuit addressed the applicable law in deciding that this Court incorrectly applied a subjective standard to the probable cause question and examined this Court's analysis of whether the Individual Defendants were entitled to qualified immunity related to the malicious prosecution claims contained in Counts I and II. (See ECF No. 134 at 8.)

         The Fourth Circuit explained that “probable cause to justify an arrest turns on the ‘facts and circumstances' known to the officer at the time of the arrest and whether those known facts give rise to a ‘fair probability' that the suspect has committed a crime.” (Id. (citing Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); Florida v. Harris, 133 S.Ct. 1050, 1055 (2013)).) The court then noted that “probable cause is measured objectively, not subjectively.” (Id. at 9 (citing United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998)).) The court elaborated on this point, stating that “[w]hile we ‘examine the facts within the knowledge of arresting officers to determine whether they provide a probability on which reasonable and prudent persons would act[, ] we do not ...


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