Gantt v. Whitaker

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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