MCALLISTER v. WINSTON-SALEM POLICE DEPARTMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANTON THURMAN MCALLISTER, )

)

Plaintiff, )

)

v. ) 1:19cv13

)

WINSTON-SALEM POLICE DEPARTMENT, )

et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on Defendants Nolan Terrance

Johnson, H.M. Bryant, J.A. Henry, J.F. Sullivan, P.M. Felske, Sgt.

D.T. Lentz, C.R. Helf, and Chris Ingram’s Motion for Summary

Judgment (Docket Entry 76 (“Summary Judgment Motion”); see also

Docket Entry 77 (“Supporting Brief”)). For the reasons that

follow, the Court should grant the Summary Judgment Motion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

As the Court recounted in a prior Opinion:

Anton Thurman McAllister (the “Plaintiff”), acting pro se,

initiated this action pursuant to 42 U.S.C. § 1983 (“Section

1983”) against the Winston-Salem Police Department; Forsyth

County, North Carolina; the City of Winston-Salem, North

Carolina; and twenty-two law-enforcement officers, alleging

that “the officers engaged in a wide-ranging conspiracy with

Tia Leonard, Plaintiff’s then-girlfriend’s mother, to have

him arrested, charged, and prosecuted for the forcible rape,

sexual assault, and felony strangulation of her daughter”

(Docket Entry 4 at 1). (See Docket Entry 2 (the “Original

Complaint”) at 1–3, 5–8, 32.) Upon screening pursuant to 28

U.S.C. § 1915A(a), the undersigned United States Magistrate

Judge recommended that the Court allow only certain claims to

proceed, based on Plaintiff’s failure to state a claim as to

some of the officers. (See Docket Entry 4 at 1-2, 14.) The

Court (per Chief United States District Judge Thomas D.

Schroeder) adopted that recommendation (over Plaintiff’s

objection (see Docket Entry 6)), such that only “Plaintiff’s

claims against Defendants Nolan Johnson, H.M. Bryant, J.A.

Henry, J.F. Sullivan, P.M. Felske, Sgt. D.T. Lentz, C.R. Helf,

and Chris Ingram (collectively, ‘Defendants’)]” (Docket Entry

7 at 1) survived initial screening.

Shortly thereafter, Plaintiff moved to amend the Original

Complaint[,] .. . [and] the undersigned screened the [new and

now] Operative Complaint, noting that “it presented the same

basic claims against Defendants as alleged in the Original

Complaint, which the Court previously allowed to proceed, but

also sought to revive the dismissed claims and to add claims

against a new defendant.” (Docket Entry 16 at 2-3.) The

undersigned recommended that the Court reject that effort,

dismissing the revived and novel claims for failure to state

a claim. (See id. at 6.) The Court (per United States

District Judge Catherine C. Eagles) likewise adopted that

recommendation (again over Plaintiff’s objection (see Docket

Entry 26)). (See Docket Entry 28.)

According to the Operative Complaint:

On February 16, 2015, Defendant Henry approached Plaintiff and

questioned him about a matter involving a moped while

concealing the true purpose of the questioning (i.e., “serious

allegations against Plaintiff” (Docket Entry 18 at 14)). (See

id. at 11, 14.) After Plaintiff “refused to go with Defendant

Henry without probable cause” (id.), Defendant Henry conspired

with Defendant Bryant to transport Plaintiff to the police

station (see id. at 14-15), where Defendant Johnson and

Defendant Sullivan elicited a confession from Plaintiff (see

id. at 16-18). During the exchange that led to that

confession, neither Defendant Johnson nor Defendant Sullivan

provided Plaintiff with Miranda warnings. (See id. at 16,

18.) Defendant Henry similarly deprived Plaintiff of such

information and denied him assistance by counsel. (See id. at

14.) Defendant Bryant failed to remedy that misconduct by

Defendant Henry. (See id. at 14-15.) In connection with his

effort to obtain a confession from Plaintiff, Defendant

Sullivan also misinformed Plaintiff about the nature of the

charges he faced. (See id. at 17-18 (explaining that Defendant

Sullivan denied rape accusation against Plaintiff) .)

Plaintiff’s confession led to his wrongful arrest and

detention on (unspecified) excessive bail. (See id. at

13-15.) During the 18 months that elapsed before Plaintiff

went to trial on charges of rape, sexual assault, kidnapping,

and strangulation, Defendants engaged in other wrongdoing.

(See id.) In particular, Defendant Johnson (i) falsified a

police report, (11) allowed Plaintiff’s accuser to continue

purchasing and using heroin, (iii) mishandled evidence at the

crime scene, and (iv) wrongfully deleted pictures and

information from Plaintiff’s Facebook account (including

potentially exculpatory evidence). (See id. at 16-17.)

Additionally, Defendant Felske improperly coached Plaintiff’s

accuser and allowed her to tamper with the crime scene. (See

id. at 18-19.) Defendant Helf accompanied Defendant Felske to

meet with Plaintiff’s accuser and likewise failed to preserve

evidence. (See id. at 20.) Defendant Lentz, as a supervisor,

“aided and abetted Defendant Felske and Defendant Helf” in

the foregoing misconduct. (See id. at 21.) Finally,

Defendant Ingram disregarded exculpatory evidence at the crime

scene and fabricated investigative reports. (See id. at 24.)

As a result, Plaintiff received an unfair trial that resulted

in his conviction of assault on a female (but acquittal of all

other charges) (see id. at 13), for which conviction he served

30 months (as a detainee, prisoner, and parolee) (see id. at

26-28). Plaintiff has attributed pain and suffering, as well

as a diagnosis of post-traumatic stress disorder, to his

wrongful arrest, prosecution, and conviction. (See id. at

17.) Based on those allegations, Plaintiff has asserted that

Defendants violated the Fourth, Fifth, Sixth, Seventh, Eighth,

Ninth, and Fourteenth Amendments. (See id. at 7.)

Defendants answered the Operative Complaint, denying

allegations of wrongdoing and invoking various affirmative

defenses. (See Docket Entries 39, 45, 49.) The parties

thereafter engaged in discovery. (See Text Order dated Feb.

18, 2020 (adopting Scheduling Order) □□ A few weeks later,

Defendants moved to stay proceedings in this case on the

grounds that the criminal prosecution of Plaintiff in North

Carolina state court (which formed the basis for the

allegations in the Operative Complaint) remained pending.

(See Docket Entry 47 (the “First Motion to Stay”); see also

Docket Entries 48 (supporting memorandum), 48-1 (the “State

Court Order”) (denying suppression motion in Plaintiff’s

criminal case)

The Court (per the undersigned) granted the First Motion to

Stay. (See Text Order dated May 4, 2020 (noting lack of timely

opposition by Plaintiff).) Several months later, Defendants

filed a notice indicating that, on September 25, 2020, the

North Carolina Supreme Court had issued a decision regarding

Plaintiff’s criminal case. (See Docket Entry 50 (the

“Notice”); see also Docket Entry 50-1 (copy of decision).)

The North Carolina Supreme Court reversed the finding of no

error by the North Carolina Court of Appeals, remanding the

case to Forsyth County Superior Court, State v. McAllister,

375 N.C. 455, 456, 847 S.E.2d 711, 712 (2020), with

instructions to address the issues underlying potential

ineffective assistance of counsel by Plaintiff’s criminal

defense attorney at trial (i.e., to “determin[e] whether

[Plaintiff] knowingly consented in advance to his attorney’s

admission of guilt to the assault on a female charge,” id. at

477, 847 S.E.2d at 725. . . .

The day after filing the Notice, Defendants again moved to

stay proceedings in this case. (See Docket Entry 51 (the

“Second Motion to Stay”); see also Docket Entry 52 (supporting

memorandum).) Because the North Carolina Supreme Court had

remanded Plaintiff’s criminal case . . ., Defendants asserted

that “the state criminal proceedings are ongoing and may not

reach a final resolution for some time.” (Docket Entry 52 at

3.) The Court (per the undersigned) granted the Second Motion

to Stay. (See Text Order dated Nov. 6, 2020 (noting lack of

timely opposition by Plaintiff).) Defendants thereafter filed

a pair of status reports, indicating that Plaintiff’s criminal

case remained pending, with no trial date set. (See Docket

Entries 54, 55.)

In November 2021, Defendants filed another status report,

advising that Plaintiff had pleaded “guilty to involuntary

manslaughter in Case No. 20 CRS 57597 [(the “2020

Case”)] . . . in a plea deal to resolve outstanding criminal

charges” (Docket Entry 57 at 1). More specifically, according

to Defendants, “the Forsyth County District Attorney’s Office

reported that Plaintiff had agreed to plead guilty to

involuntary manslaughter in the 2020 Case ‘in exchange for a

dismissal’ of the [assault charge remanded by the Supreme

Court]” (id.). Defendants attached as an exhibit a copy of

the public record documenting the dismissal of th[at charge]

in a manner consistent with the report from the Forsyth County

District Attorney’s Office. (See Docket Entry 57-1 (the

“Dismissal Form”) at 2 (bearing signature of prosecutor “EF

DRESEL” as well as “filed” stamp of Forsyth County Clerk of

Superior Court).) “The Dismissal Form also notes that

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Plaintiff had ‘served all available time on the [a]ssault

[c]harge[] and can get no more punishment even if [the] case

was retried; further prosecution not in the public interest.’”

(Docket Entry 57 at 2 (quoting Docket Entry 57-1 at 2).)

The Court (per the undersigned) lifted the stay and reset

several discovery deadlines. (See Text Order dated Nov. 8,

2021.) Shortly thereafter, Defendants moved for judgment on

the pleadings pursuant to Federal Rule of Civil Procedure

12(c) (“Rule 12(c)”), arguing that “Plaintiff’s claims are

barred by Heck v. Humphrey, 512 U.S. 477 (1994) and its

progeny.” (Docket Entry 58 at 1[.]

(Docket Entry 69 at 1-9 (certain internal brackets, ellipses,

quotation marks, and parentheses omitted).)

The Court (per the undersigned) recommended denial of the

Motion for Judgment on the Pleadings (see id. at 30), which the

Court (per Judge Eagles) adopted (Docket Entry 73). Thereafter,

Defendants filed a Notice of Intent to File Dispositive Motions

(Docket Entry 74), and then, the Summary Judgment Motion and

Supporting Brief (Docket Entry 76; Docket Entry 77). On January 3,

2023, the Clerk sent Plaintiff a letter advising him of his “right

to file a 20-page response in opposition . . . within 30 days from

the date of service of [Summary Judgment M]otion upon [him].”

(Docket Entry 79 at 1.) The letter specifically cautioned

Plaintiff that a “failure to respond or . . . file affidavits or

evidence in rebuttal within the allowed time may cause the [C]ourt

to conclude that [ D]efendants’ contentions are undisputed and/or

that [Plaintiff] no longer wish[es] to pursue the matter,” as well

as that, “unless [Plaintiff] file[s] a response in opposition to

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the [Summary Judgment M]Jotion, it is likely . . . summary judgment

[will be] granted in favor of [Defendants].” (Id.)

Despite these warnings, Plaintiff did not respond. (See

Docket Entries dated January 3, 2023, to present.) Given that lack

of response and the fact that Plaintiff did not verify the factual

allegations in the Complaint (see Docket Entry 18 at 34

(certification that “the factual allegations have evidentiary

support” for purposes of Federal Rule of Civil Procedure 11)),

Plaintiff’s bare allegations cannot controvert facts which the

Summary Judgment Motion or record establish. See Custer v. Pan Am.

Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993) (recognizing that

party’s failure “to respond to a summary judgment motion may leave

uncontroverted those facts established by the motion”).' For the

reasons that follow, no genuine issue of material fact remains and

the Court should grant the Summary Judgment Motion.”

1 By local rule, “[i]Jf a respondent fails to file a response

within the time required .. ., the motion will be considered and

decided as an uncontested motion, and ordinarily will be granted

without further notice.” M.D.N.C. LR 7.3(k). However, the Fourth

Circuit requires substantive review of even unopposed motions for

summary Judgment. See Custer, 12 F.3d at 416 (“[T]he court, in

considering a motion for summary judgment, must review the motion,

even if unopposed, and determine from what it has before it whether

the moving party is entitled to summary judgment as a matter of

law.”).

2 After conducting an initial review of the Complaint, the

Court expressly allowed Plaintiff’s claims for involuntary

custodial interrogation and malicious prosecution to proceed. (See

Docket Entry 4 at 7-9; see also Docket Entry 7 at 1 (adopting

Docket Entry 4).) In doing so, the Court noted certain other

allegations, which conceivably could pertain to a claim for

II. DISCUSSION

A. Summary Judgment Standards

“The [C]ourt shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A genuine dispute of material fact exists “if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). The movant bears the burden of establishing the

absence of such dispute. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). In analyzing a summary judgment motion, the Court

“draw[s] all reasonable inferences in favor of the non-moving

party. Emmons v. City of Chesapeake, 982 F.3d 245, 250 (4th Cir.

2020). However, “[u]nsupported speculation is not sufficient to

fabrication of evidence (see id. at 7-9, 11, 13), as well as

“possible state law claims” (id. at 4 n.3). The Court, however,

described those allegations/potential claims as “somewhat

conclusory .. . [and] not specific” (id. at 9), and as “hardly a

model claim” (id. at 13; see also id. at 4 n.3 (stating that “any

possible state law claims should remain matters for the parties to

address”) (emphasis added)). Accordingly, Plaintiff bore the

burden of further developing any claim for fabrication of evidence,

and any possible state law claims, which he failed to do.

Tellingly, when Defendants filed their Summary Judgment Motion,

wherein they addressed Plaintiff’s claims for involuntary custodial

interrogation and malicious prosecution, but not fabrication of

evidence or any state law claims, Plaintiff elected not to file a

reply or otherwise produce support for fabrication of evidence or

any state law claims. As a result, the Court should deem Plaintiff

to have abandoned any such claims. See Brown v. Novant Health,

Inc., No. 1:05CV01069, 2007 WL 1521465, at *1 n.2 (M.D.N.C. May 23,

2007) (noting that party may abandon theory at summary Judgment

stage).

defeat a summary judgment motion.” Felty v. Graves-Humphreys Co.,

818 F.2d 1126, 1128 (4th Cir. 1987)). Rather, the Court must “find

that a reasonable jury could return a verdict for [the nonmoving

party in order for] a genuine factual dispute [to] exist[] . . . .”

Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 959

(4th Cir. 1996).

B. Involuntary Custodial Interrogation

Plaintiff’s first claim involves what he describes as an

“unconstitutional interrogation.” (Docket Entry 18 at 13.)

According to the Complaint, Defendant Henry “approach[ed Plaintiff]

and[,] without informing [him] of the serious allegations against

[him,] proceeded to mislead and deceive [him] by stating that [t]he

reason[] for approaching [him] was concerning a moped.” (Id. at

14.) The Complaint contends further that, “after 30 or 40 minutes

in the cold of [Plaintiff] refusing to go with [Defendant Henry]

without probable cause, [Defendant Henry] conspired with [another

officer ] to get [Plaintiff] to the police station and make a

statement which could establish grounds for probable cause.” (Id.)

In sum, Plaintiff alleges that Defendant Henry either coerced or

deceived Plaintiff into going to the police station to make a

statement regarding an incident involving a moped, making the

ensuing interview an involuntary custodial interrogation, and

violating Plaintiff’s “privilege against self-incrimination” (see

id.).

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Defendants’ Supporting Brief rejects the premise that

Plaintiff “was [] subjected to an involuntary custodial

interrogation.” (Docket Entry 77 at 15.) Defendants emphasize

that Plaintiff voluntarily “went to the police station for the

interview” (id. at 16), rendering the interview “noncustodial”

(id.). Defendants argue further that, even if Defendant Henry

failed to reveal the true nature of the investigation to Plaintiff,

“misleading statements, misleading ploys, deception or minor fraud

by officers do[] not automatically render a confession

involuntary.” (Id. (citing United States v. Umana, 750 F.3d 320,

344-45 (4th Cir. 2014)).) As a result, the Supporting Brief

maintains that Plaintiff’s statements during the interview,

voluntarily made, do not implicate his privilege against self-

incrimination. (See id.)

“No person... shall be compelled in any criminal case to be

a witness against himself.” U.S. Const. amend. V; see also Malloy

v. Hogan, 378 U.S. 1, 6 (1964) (holding that “the Fifth Amendment’s

exception from compulsory self-incrimination is also protected by

the Fourteenth Amendment against abridgment by the States”). “A

statement is involuntary under the Fifth Amendment only if it is

involuntary within the meaning of the Due Process Clause.” United

States v. Braxton, 112 F.3d 777, 780 (4th Cir. 1997) (internal

quotation marks omitted). Under the Due Process clause, “[t]he

test [for determining the voluntariness of a statement] is whether

the [statement] was extracted by any sort of threats or violence,

or obtained by any direct or implied promises . . . or by the

exertion of any improper influence,” Hutto v. Ross, 429 U.S. 28, 30

(1976) (internal quotation marks and parentheticals omitted), such

that the defendant’s “will has been overborne and his capacity for

self-determination critically impaired,” Schneckloth v. Bustamonte,

412 U.S. 218, 225 (1973). Further, in evaluating the voluntariness

of a statement, courts should consider “the totality of the

circumstances, including the characteristics of the defendant, the

setting of the interview, and the details of the interrogation.”

United States v. Pelton, 835 F.2d 1067, 1071 (4th Cir. 1987).

Although ostensibly coercive, “[p]loys to mislead a suspect or

lull him into a false sense of security” do not rise to the level

of a constitutional transgression. Illinois v. Perkins, 496 U.S.

292, 297 (1990). Relatedly, an officer “ha[s] no duty to advise [a

suspect] of the identity of the specific offense under

investigation.” Braxton, 112 F.3d at 784. Even so, an officer’s

“failure to inform a defendant that he was the subject of the

investigation when the defendant inquired about the nature of the

investigation and the agents’ failure to respond was intended to

mislead results in affirmative deceit.” United States v. Giddins,

858 F.3d 870, 883 (4th Cir. 2017) (internal brackets and ellipses

omitted). And affirmative “deceit . . . constitutes coercion.” Id.

at 884. In the absence of affirmative deceit, “[t]he determinative

10

factor remains the question of whether [any] misrepresentations

overbore the defendant’s will.” United States v. Whitfield, 695

F.3d 288, 302 (4th Cir. 2012).

The record here reflects the absence of a genuine issue of

material fact regarding the voluntariness of Plaintiff’s statements

to Defendants. As body camera footage Defendants submitted along

with their Supporting Brief shows (see, e.g., Docket Entry 77-1 at

7), Defendant Henry first approached Plaintiff in Winston-Salem,

North Carolina, the evening of February 17, 2015. In the footage,

the sun has set, streetlights illuminate the roads and sidewalks,

and snow covers much of the ground. Audio begins approximately 30

seconds into the video as Defendant Henry walks towards his patrol

car along with Plaintiff. In the first question the footage

captures, Defendant Henry asks Plaintiff, “[s]o where is the moped

supposed to be at?” Plaintiff replies that he borrowed the moped,

but cannot return it because he “do[es]n’t have the keys or

helmet.” Defendant Henry then enters his vehicle while Plaintiff

waits outside (off camera), makes a telephone call (presumably to

a supervisor), and states that Plaintiff “gave [Defendant Henry] a

fake name,” and that “CID wants to talk to him but . . . [he]

do[es]n’t have any warrants to do anything.” Defendant Henry later

says over the telephone that Plaintiff “thinks we’re out here

looking for a moped,” and that he “hasn’t broached anything else”

with Plaintiff. The voice on the other end of the telephone,

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audible in the body camera footage, responds that Defendant Henry

should “see if [Plaintiff] wants to talk.”

After the call concludes, Defendant Henry approaches Plaintiff

and says “[h]ere’s the deal . . . the moped could be a serious

charge. It could be like a felony. . . . Will you come down with

me down to the police department, no handcuffs, you’re not under

arrest, just coming down to talk with me about that moped. . . .

It’s better for you, trust me.” Plaintiff initially expresses some

reluctance due to his concern that getting in a police car could

reflect guilt of something, and asks whether Stephanie Leonard (his

then-girlfriend) “can drive [him] down” to the station. Defendant

Henry responds that he heard “there was some stuff that went on

last night, where you guys had some problems,” so Plaintiff should

ride down with an officer instead. Plaintiff acknowledges

something occurred, responding, “OK. That’s what I’m saying. For

sure.” Defendant Henry continues that by stating that, “[w]e’re

gonna talk about everything; we want to talk about what happened

last night, we’re gonna talk about this moped, we want to get

everything straightened out.” Defendant Henry adds that

“[Plaintiff is] not under arrest . . . [and is] voluntarily coming

down. If [Plaintiff] want[s] to get up and say ‘you know what,

I’m out,’ then [Defendant Henry] can’t stop [him].” Plaintiff then

agrees to come in for questioning, clarifying that, “if [he is] to

get in the car, willingly,” Defendants should not construe that as

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any admission of guilt. Defendant Henry’s conversation with

Plaintiff lasts approximately four minutes. The entire exchange

(including Defendant Henry’s two telephone calls from his patrol

car) spans only 15 minutes, not 30-40 minutes as Plaintiff alleged

(see Docket Entry 18 at 13).

Additional footage Defendants submitted with their Supporting

Brief contains the interview of Plaintiff at the police station.

(See, e.g., Docket Entry 77-1 at 9.)3 After entering the interview

room at approximately 9:04pm, Plaintiff and an officer sit and

engage in casual conversation while waiting for detectives to

arrive. Plaintiff, not in handcuffs or any form of restraints,

appears relaxed and in good spirits. Eventually, at approximately

9:43pm, Defendants (and detectives) Johnson and Sullivan arrive.

As the officer who had waited with Plaintiff leaves the interview

room, Plaintiff shakes his hand goodbye, smiles, and tells him to

“be safe out there.”

Defendant Johnson then begins the interview at 9:44pm by

asking, “[n]ow, you are down here voluntarily?” Plaintiff

responds, “[y]es, sir.” Defendant Johnson continues, “[t]his is a

secure location. It took a key to get in, but there’s no key to

get out. So, anytime you can walk out. The door is unlocked.”

Plaintiff responds, “OK.” Defendant Johnson goes on to state,

3 This footage, unlike the body camera footage, contains time-

stamps, so references to this footage will include the times at

which various individuals made statements.

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“[y]ou basically just, answer whatever questions that you feel that

you want to answer.” Plaintiff responds, “[t]hey keep saying I can

leave when I want to . . . I’m fine with whatever you’re doing.

It’s fine with me.” The interview proceeds from there, and at no

point does Plaintiff refuse to answer a question or ask to leave.4

Accordingly, the record reflects that, although Defendant

Henry may have initially deceived Plaintiff by telling him officers

wished to question him regarding the moped, and by arguably

misrepresenting the seriousness of the potential charge, see

N.C.G.S. § 14-72.2. (“unauthorized use of a motor-propelled

conveyance is a Class 1 misdemeanor”), Defendant Henry cured any

misconception Plaintiff may have had by the time Plaintiff agreed

to accompany officers to the station for questioning. When

Plaintiff asked whether Ms. Leonard could drive him to the station,

Defendant Henry responded that he heard “there was some stuff that

went on last night, where you guys had some problems,” so Plaintiff

should ride down with an officer instead. Defendant Henry added

that officers wanted to “talk about everything,” including “what

happened last night.” Defendant Henry had no affirmative “duty to

advise [Plaintiff] of the identity of the specific offense under

4 Several minutes into the interview, Plaintiff admits he has

consumed “two 40[oz bottle]’s [of beer or malt liquor],” at which

point Defendant Sullivan pauses the interview to ask whether

Plaintiff “feel[s] like he’s drank too much and shouldn’t be in

here talking to” detectives. Plaintiff responds, “no, y’all are

fine.” Throughout the interview, Plaintiff’s “behavior . . . did

not suggest impairment,” Pelton, 835 F.2d at 1073.

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investigation, Braxton, 112 F.3d at 784, and, in any event,

Defendant Henry did not “fail[] to inform [Plaintiff] that he was

the subject of the investigation,” Giddins, 858 F.3d at 883. The

record reflects that, when Plaintiff agreed to submit to

questioning from officers, he understood the scope of questioning

to include both the moped and an incident with Ms. Leonard from the

prior evening. Plaintiff’s unverified allegations to the contrary

do not create a genuine issue of material fact. See Custer, 12

F.3d at 416.

In addition, Defendant Henry’s statement that “it’s better for

[Plaintiff]” to come down to the station for questioning did not

render Plaintiff’s subsequent statements involuntary. The United

States Court of Appeals for the Fourth Circuit “ha[s] consistently

declined to hold categorically that a suspect’s statements are

involuntary simply because police deceptively highlight the

positive aspects of confession.” Umana, 750 F.3d at 344.

Defendant Henry here made “no specific promises of leniency.”

United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005). Put

another way, “[g]eneral encouragement to cooperate is far different

from specific promises of leniency.” Pelton, 835 F.2d at 1073.

The former represents constitutionally-permissible law enforcement

conduct; the latter may not. Defendant Henry’s statement to

Plaintiff falls into the former category. See United States v.

Leonard, No. 97-4266, 141 F.3d 1161 (table), 1998 WL 163735, at *5

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(ruling that law enforcement officer’s “use[ of] the word

‘guarantee’ in relation to his representations that a court would

look favorably upon a decision by [the defendant] to cooperate, and

would be less likely to ‘hammer’ [him] than if he forced a drawn

out investigation” did “not amount to a coercive promise of

leniency” because the notion “[t]hat a suspect’s cooperation, by

lightening the government’s burdens of investigation and

prosecution, is looked upon favorably by prosecutors and judges is

very close to being a truism” (some internal quotation marks

omitted)).

Finally, even if the Court concluded that Defendant Henry

deceived Plaintiff and did not rectify Plaintiff’s misconception,

the Court should still find that Plaintiff’s interview (and

statements made therein) contained voluntary admissions because

Defendant Johnson made clear, immediately before the interview

commenced, that Plaintiff “[was] down here voluntarily,” that “it

took a key to get in, but there’s no key to get out,” and that

Plaintiff could “answer whatever questions that [he felt] that [he]

want[ed] to answer.” To each of those statements, Plaintiff

responded affirmatively. See, e.g., United States v. Hill, 649

F.3d 258, 268 (4th Cir. 2011) (holding that “an individual’s

consent can be sufficient to dissipate the taint of a[ Fourth

Amendment violation]”); United States v. Seidman, 156 F.3d 542, 548

(4th Cir. 1998) (noting that “an intervening act of free will may

16

purge the primary taint” of constitutional violation (internal

brackets and quotation marks omitted)).5

Importantly, and to repeat, the relevant test “is whether the

confession was extracted by any sort of threats or violence, or

obtained by any direct or implied promises . . . or by the exertion

of any improper influence.” Hutto, 429 U.S. at 30. Here,

immediately prior to Plaintiff’s self-incrimination, Defendant

Johnson stated unequivocally that Plaintiff (1) came to the station

voluntarily, (2) could leave any time, and (3) could refuse to

answer any question. Given the totality of the circumstances (that

Defendant Henry revealed the intent to question Plaintiff about not

just the moped, but also his conflict with Ms. Leonard before

Plaintiff agreed to submit to questioning, and that Defendant

Johnson repeatedly emphasized the voluntary nature of the

interview , the Court should not conclude that Plaintiff’s “will

)

[was] overborne and his capacity for self-determination critically

impaired” see Schneckloth, 412 U.S. at 225. The Court should

therefore hold that Defendants Henry and Johnson did not subject

5 Notably, in ruling on a pretrial motion to suppress

Plaintiff’s interview, the state court trial judge concluded that

“[e]verything that occurred down at the Police Department [] was

sufficient to purge any of the taint of the statements that were

made to [Plaintiff] in order to get [him] to accompany [Defendant]

Henry to the Police Department”)). (Docket Entry 77-2 at 168.)

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Plaintiff to an involuntary custodial interrogation, and grant

Defendants summary judgment as to this claim.®

C. Malicious Prosecution

Plaintiff’s second (and final) claim best resembles the common

law tort of malicious prosecution. (See Docket Entry 4 at 8.)

According to the Complaint, while investigating Plaintiff,

Defendant Johnson fabricated a police report (see Docket Entry 18

at 16), disregarded certain pieces of evidence (see id.}), and

destroyed exculpatory evidence (see id. at 17). The Complaint

alleges further that Defendant Felske instructed Ms. Leonard to

describe the incident as a sexual assault (see id. at 18), allowed

her to “destroy the evidence of a crime scene” (id. at 19), and

otherwise failed to preserve certain evidence (see id.). As a

result, the Complaint argues that Defendants’ misconduct “led to a

lack of presumption of innocence, excessive bail, wrongful and an

extensive incarceration and prosecution which ultimately

contributed to an unlawful conviction at a[n] unfair trial and

6 During initial screening, the Court (per the undersigned)

did not adopt Plaintiff’s theory that any failure to inform

Plaintiff of his right to counsel, “or [Plaintiff’s inability] to

have counsel present” (Docket Entry 18 at 14), factored into his

involuntary custodial interrogation claim. And in fact, precedent

forecloses such a theory. See Vega v. Tekoh, _ U.S. _, __, 142

S. Ct. 2095, 2107-08 (2022) (holding that failure to Mirandize

suspect does not confer Section 1983 cause of action because

exclusion of unwarned statements represents adequate remedy).

Accordingly, Defendants properly did not address this theory in

their Supporting Brief (see generally Docket Entry 77), and the

Court need not consider it for purposes of summary judgment.

18

sentencing which accumulated to over 30 months of jail - parole and

prison time.” (Id. at 17.) In short, Defendants allegedly

instigated a malicious prosecution of Plaintiff.

A malicious prosecution claim requires a showing of “both an

unreasonable seizure and a favorable termination of the criminal

proceeding flowing from the seizure.” Snider v. Seung Lee, 584

F.3d 193, 199 (4th Cir. 2009). Defendant’s Supporting Brief

contends that Plaintiff can satisfy neither element. (See Docket

Entry 77 at 18-22.) As to the first element, the Supporting Brief

argues that Plaintiff cannot establish an unreasonable seizure

because probable cause existed at the time of his arrest. (See id.

at 20.) The Supporting Brief then incorporates and restates

Defendants’ arguments regarding the lack of favorable termination

from their Motion for Judgment on the Pleadings. (See id.; see

also Docket Entry 72 at 4-6, 13-16.) Because probable cause

supported Plaintiff’s arrest, Defendants are entitled to judgment

as a matter of law on Plaintiff’s malicious prosecution claim, and

the Court need not determine whether the relevant criminal

proceedings terminated favorably.’

7 In that regard, the Court may observe that Defendants

continue to rely upon the argument that “Plaintiff’s compromise

resolution of the relevant criminal proceedings against him did not

in any way indicate or suggest that Plaintiff was innocent of the

charges.” (Docket Entry 59 at 8.) But “[t]o demonstrate a

favorable termination of a criminal prosecution for purposes of [a]

Fourth Amendment claim under § 1983 for malicious prosecution, a

plaintiff need only show that his prosecution ended without a

conviction.” Thompson v. Clark, _ U.S. _, __, 142 S. Ct. 1332,

19

The Fourth Amendment to the Constitution protects people from

unreasonable seizures. See Wilson v. Arkansas, 514 U.S. 927, 934

(1995) (describing requirement of reasonableness as “flexible”).

“To establish an unreasonable seizure under the Fourth Amendment,

[Plaintiff] needs to show that the officers decided to arrest [him]

. . . without probable cause.” Brown v. Gilmore, 278 F.3d 362, 367

(4th Cir. 2002). A showing of probable cause requires that “the

facts and circumstances within the officer's knowledge would

warrant the belief of a prudent person that the arrestee had

committed or was committing an offense.” United States v. Manbeck,

744 F.2d 360, 376 (4th Cir. 1984). ‘“[P]robable cause is a fluid

concept,” Illinois v. Gates, 462 U.S. 213, 232 (1983), judged by

the “totality-of-the-circumstances,” id. at 230.

An officer’s personal observations can suffice to establish

probable cause for an arrest. See United States v. Al-Talib, 55

F.3d 923, 931 (4th Cir. 1995) (officer’s observation of vehicle

which traveled repeatedly to confidential informant’s hotel and

engaged in “counter-surveillance driving tactics” provided probable

cause). Where the arresting officer did not personally observe the

offense at issue, “it is difficult to imagine... better evidence

of probable cause than an identification by name of [the]

assailant[] provided by a victim.” fTorchinsky v. Siwinski, 942

1335 (2022). Plaintiffs need not “show that the criminal

prosecution ended with some affirmative indication of innocence.”

Id. at 1341.

20

F.2d 257, 262 (4th Cir. 1991); see also Williams v. Wright, No.

6:10-CV-2844, 2011 WL 6700373, at *7 (D.S.C. Nov. 2, 2011)

(recommending summary judgement in favor of defendant where

plaintiff challenged probable cause underlying his arrest by

impugning accuser’s motives in making statement to police, but did

not submit any proof “that the victim’s motive or unreliability

should have been apparent to” officers), recommendation adopted,

No. 6:10-2844, 2011 WL 6699448 (D.S.C. Dec. 22, 2011).

In addition, an individual’s description of his conduct to law

enforcement, when such conduct reasonably appears to violate a law,

provides probable cause for a subsequent arrest. See Brown v.

Belt, No. 2:15-CV-11549, 2019 WL 1648867, at *5 (S.D.W. Va. Apr.

15, 2019) (probable cause supported burglary arrest where apartment

property manager admitted he “let another man into the apartment of

a resident . . . to take personal property from that apartment”).

Furthermore, because courts review the existence of probable cause

from the totality of the circumstances, see Gates, 462 U.S. at 232,

“an officer’s practical experience and the inferences the officer

may draw from that experience” must factor into the calculus,

United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004).

In effectuating an arrest, officers only “need probable cause

that a crime has been committed, not that the criminal defendant

committed all of the crimes for which he or she is later charged.”

Calusinski v. Kruger, 24 F.3d 931, 935 (7th Cir. 1994); see also

21

District of Columbia v. Wesby, U.S. , __, +138 S. Ct. 577, 585

n.2 (2018) (noting that “an arrest is lawful if the officer had

probable cause to arrest for any offense, not just the offense

cited at the time of arrest or booking”) (emphasis added). Simply

put, “[p]robable cause need only exist as to any offense that could

be charged under the circumstances.” McMillian v. LeConey, No.

5:09-CV-175, 2011 WL 2144628, at *8 (E.D.N.C. May 31, 2011)

(quoting Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir.

1994)), aff'd, 455 F. App’x 295 (4th Cir. 2011). Because, “[flor

fourth-amendment purposes, an arrest on multiple charges is a

single transaction,” Wilkerson v. Hester, 114 F. Supp. 2d 446, 456

(W.D.N.C. 2000), the task for a reviewing court consists merely of

determining “that there was probable cause to arrest for at least

one charge,” Johnson v. City of Greenville, No. 4:15-CV-00064, 2015

WL 7854564, at *7 (E.D.N.C. Dec. 3, 2015).

In the absence of a warrant, North Carolina law permits an

officer to arrest “any person who the officer has probable cause to

believe (1) has committed a criminal offense in the officer’s

presence, or (2) has committed a felony.” State v. Hardy, 31 N.C.

App. 67, 69 (1976). By statute, North Carolina also permits

warrantless arrests for certain misdemeanors (if supported by

probable cause). See N.C.G.S. § 15A-401 (b) (2) (d). Misdemeanor

assault constitutes one of the offenses for which an officer may

make a warrantless arrest. See id.; see also N.C.G.S. § 14-33(a).

22

Plaintiff’s admissions during his interview with Defendant

Johnson provide probable cause to support his arrest for

misdemeanor assault. In the security footage (see, e.g., Docket

Entry 77-1 at 9) of Plaintiff’s interview that Defendants

submitted, at approximately 10:27pm, Plaintiff begins recounting

the events of the evening of February 16, 2015. At 10:36pm (in the

security footage), Plaintiff states that he grew frustrated with

Ms. Leonard when they left their residence the prior evening to go

buy cigarettes, and Ms. Leonard apparently said that she also

wanted to walk to a separate store to purchase wine. Defendant

Johnson asks Plaintiff if there “was any way [he] tried to relay

how upset [he] was?” Plaintiff responds “ yea . . . I pushed her.

. . . She fell down.” Plaintiff continued by stating that “[he is]

wrong for pushing her, [he] know[s] that.”

At 10:46pm, the interview turns to what happened when

Plaintiff and Ms. Leonard returned to their residence. Plaintiff

recounts that “[w]e did get into a tussle.” When Defendant

Sullivan asks what a tussle entails, Plaintiff responds that “[i]t

got crazy man, I’m not going to sit here and lie to y’all.” At

10:48pm, Plaintiff admits that “[he] got little more aggressive

than usual,” and that “[he] swung at her, you know, backhanded her

. . . and it caught her in the face.” At 10:51pm, Plaintiff states

that “we got into a fight man, real talk man.” At 10:57pm,

Plaintiff says that “[he] know[s] what he did was wrong,” but

23

denies striking Ms. Leonard more than once, stating at 10:59pm that

“I just popped her in the mouth, and the rest of it was tussling.”

At 11:11pm, while Plaintiff describes what ensued after his

“tussle” with Ms. Leonard, he recounts that he took her to get

cleaned up and that “she spit blood when we w[ere] in the

bathroom.”

By admitting that he pushed Ms. Leonard to the ground, and

struck her in the face, Plaintiff provided probable cause to

Defendant Johnson sufficient to support Plaintiff’s subsequent

arrest for assault. See Brown, 2019 WL 1648867, at *5; see also

State v. Davis, 68 N.C. App. 238, 244 (1984) (“An assault is an

overt act . . . with force and violence, to do some immediate

physical injury to the person of another sufficient to put a

reasonable person in fear of immediate bodily harm.” (internal

brackets, quotation marks, and ellipses omitted)). Even in the

absence of a warrant, North Carolina by statute permits warrantless

arrests for misdemeanor assault. See N.C.G.S. § 15A-401(b)(2)(d).

Because officers only “need probable cause that a crime has been

committed, not that the criminal defendant committed all of the

crimes for which he or she is later charged,” Calusinski, 24 F.3d

at 935, and because the task for a reviewing court consists merely

of determining “that there was probable cause to arrest for at

least one charge,” Johnson, 2015 WL 7854564, at *7, a finding of

probable cause as to Plaintiff’s misdemeanor assault charges should

24

defeat Plaintiff’s malicious prosecution claim. Accordingly, the

Court should grant Defendants summary judgment on Plaintiff’s claim

for malicious prosecution.8

8 This recommended conclusion, however, does not in any way

suggest the absence of probable cause as to the other charges

Plaintiff faced. Quite the contrary - body camera footage

Defendants submitted with their Supporting Brief includes

statements from Ms. Leonard to Defendant Felske. In Defendant

Felske’s body camera footage (see, e.g., Docket Entry 77-1 at 4),

he approaches Ms. Leonard outside of a BP gas station the morning

of February 17, 2015. When Defendant Felske asks Ms. Leonard what

happened the prior night, she reports that “there’s blood all over

my carpet, my bed;” “[Plaintiff] hit [her] so hard [she] do[es]n’t

even remember what he was saying;” “[Plaintiff] choked [her];”

“[Plaintiff] openhanded-ly hit [her] so hard that [she] fell

sideways into the snow;” Plaintiff hit her “probably 20, 30 times;”

“[she] has bruises all over her, [she] can barely walk;”

“[Plaintiff] was choking [her and] covering [her] mouth, trying to

suffocate [her] with a pillow;” “[Plaintiff] bit [her] fingers;”

and “[Plaintiff] was trying to shove his fingers down [her]

throat.” In the footage, Ms. Leonard has visible lacerations on

her face and hands. She continues recounting the events of

February 16, stating that “[Plaintiff] stripped [her] naked;”

“[she] guesses she fell asleep or something, [she] woke up and

[Plaintiff] was having sex with [her];” “[she] said ‘stop, don’t do

this,’ and [Plaintiff] said ‘shhh, be quiet;’” “[Plaintiff] tried

to make [her perform oral sex on him];” “[she] said, ‘no, I cant,’

because of [her] mouth, and because [she] didn’t want to;” and

“[Plaintiff] had sex with [her],” as “[she] was crying” and saying

“no, stop.” Ms. Leonard identifies Plaintiff by name and provides

his date of birth to Officer Felske. As previously noted, “it is

difficult to imagine . . . better evidence of probable cause than

an identification by name of [the] assailant[] provided by a

victim.” Torchinsky, 942 F.2d at 262. Additionally, Plaintiff

provided no evidence that “that the victim’s motive or

unreliability should have been apparent to” officers, Williams,

2011 WL 6700373, at *7, beyond his vague and conclusory allegations

of a conspiracy against him, which do not suffice at this stage,

see Custer, 12 F.3d at 416. In sum, although the Court certainly

could conclude probable cause supported all the charged offenses,

it need only find probable cause as to the assault charge in order

to dispose of Plaintiff’s malicious prosecution claim. See, e.g.,

Calusinski, 24 F.3d at 935; Johnson, 2015 WL 7854564, at *7.

25

CONCLUSION

Because the record lacks evidence from which a reasonable

fact-finder could conclude that Defendants subjected Plaintiff to

an involuntary custodial interrogation, or that Defendants

maliciously prosecuted Plaintiff, Defendants have shown entitlement

to judgment as a matter of law.

IT IS THEREFORE RECOMMENDED that the Summary Judgment Motion

(Docket Entry 76) be granted.

This 27th day of February, 2023.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

26