HARRIS v. TOWN OF SOUTHERN PINES

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LEE MARVIN HARRIS, SR., )

)

Plaintiff, )

)

v. )

)

THE TOWN OF SOUTHERN PINES, ) 1:21-cv-955

OFFICER JASON PERRY, in his )

individual capacity, OFFICER )

SEAN LOWERY, in his individual )

capacity, OFFICER KYLE MARSH, )

in his individual capacity, )

and CHIEF OF POLICE ROBERT )

TEMME, in his official and )

individual capacity, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is Defendants’ Motion for Summary

Judgment filed by the Town of Southern Pines, Chief of Police

Robert Temme in his official and individual capacities, and

Officers Jason Perry, Sean Lowery, and Kyle Marsh in their

individual capacities. (Doc. 26.) For the following reasons,

this court will grant Defendants’ motion.

I. PROCEDURAL HISTORY

On December 16, 2021, Plaintiff Lee Marvin Harris, Sr.

initiated this action alleging six causes of action. (Compl.

(Doc. 1) at 11–20.)1 Against Officers Perry, Lowery, and Marsh in

their individual capacities (“Officer Defendants”), Plaintiff

alleges claims for malicious prosecution under the Fourth

Amendment and 42 U.S.C. § 1983, malicious prosecution under

North Carolina state law, fabrication of evidence under 42

U.S.C. § 1983, and failure to intervene under 42 U.S.C § 1983.

(See id. at 11–18.) Plaintiff also alleges a Monell claim for

failure to train or supervise under 42 U.S.C. § 1983 against

Chief of Police Robert Temme in his individual2 and official

capacities and against the Town of Southern Pines (“City

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

2 A Monell claim is a cause of action that holds a

“government as an entity . . . responsible under § 1983.” Monell

v. Dep’t of Soc. Serv. of the City of N.Y., 436 U.S. 658, 694

(1978). “Personal-capacity suits seek to impose personal

liability upon a government official for actions he takes under

color of state law.” Kentucky v. Graham, 473 U.S. 159, 159

(1985). Accordingly, a Monell claim is limited to municipal

entities and government officials acting in their official

capacities; “a Monell claim cannot lie against a municipal

official sued in his individual capacity.” Grim v. Baltimore

Police Dep’t, No. ELH-18-3864, 2019 WL 5865561, at *16 (D. Md.

Nov. 8, 2019); see, e.g., Devi v. Prince George’s Cnty., DKC-16-

3790, 2017 WL 3592452 at *2 n.3 (D. Md. Aug. 21, 2017)

(“Plaintiff cannot state a Monell claim against an officer in

his individual capacity.”); Harasz v. Katz, 239 F. Supp. 3d 461,

505 (D. Conn. 2017) (“Monell does not apply to state officials

or individuals sued in their individual capacity.”). To the

extent Plaintiff brings a Monell claim against Chief of Police

Temme in his individual capacity, summary judgment will be

granted in Chief Temme’s favor as to that claim.

Defendants”). (See id. (Doc. 1) at 19–20.) Although Plaintiff’s

complaint originally alleged a claim against Officer Perry in

his individual capacity for First Amendment retaliation under 42

U.S.C. § 1983, (see id. at 19–20), Plaintiff has abandoned this

claim, (see Pl.’s Resp. (Doc. 31) at 2 n.1).

Discovery completed on October 7, 2022. (See Ord. to Extend

the Discovery Deadline (Doc. 24).) Subsequently, Defendants

filed a Motion for Summary Judgment, (Doc. 26), along with a

supporting memorandum, (Mem. of Law in Supp. of Defs.’ Mot. for

Summ. J. (“Defs.’ Br.”) (Doc. 27)). Plaintiff filed a response

in opposition. (Pl.’s Mem. in Opp’n to Defs.’ Mot. for Summ. J.

(“Pl.’s Resp.”) (Doc. 31).) Defendants replied. (Defs.’ Reply to

Pl.’s Opp’n to Mot. for Summ. J. (“Defs.’ Reply”) (Doc. 34).)

Defendants’ motion for summary judgment, (Doc. 26), is ripe for

adjudication.

II. FACTUAL BACKGROUND

On a motion for summary judgment, the court views the

evidence in the light most favorable to Plaintiff as the

nonmoving party. See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.

1994).

A. Investigation of the Dope Boy Clic

In 2017, Officer Jason Perry was a police officer for the

Southern Pines Police Department (“SPPD”) in the Investigations

Division, focusing on narcotics investigations. (See Ex. A,

Perry Decl. (“Perry Decl.”) (Doc. 26-1) at 2.) Officer Walter

Lowery was also a police officer for the SPPD in the

Investigations Division, focusing on narcotics investigations.

(See Ex. B, Lowery Decl. (“Lowery Decl.”) (Doc. 26-2) at 2.)

Officer Kyle Marsh was lieutenant of the SPPD’s Investigations

Division. (See Ex. C, Marsh Decl. (“Marsh Decl.”) (Doc. 26-3)

at 2.) In October 2017, Officer Marsh was promoted to

“lieutenant in charge” of the Investigations Division; in that

role, he “oversaw the personnel that were assigned to the

Investigations Division, including Officers Lowery and Perry.”

(Id.)

In February 2017, SPPD began investigating drug trafficking

by the “Dope Boy Clic” in Southern Pines, North Carolina, and

its surrounding areas. (See Perry Decl. (Doc. 26-1) at 2–3;

Ex. 3, Perry Tr. (“Perry Dep.”) (Doc. 32-3) at 99–100.) The

investigation was titled Operation Leader. (See Perry Decl.

(Doc. 26-1) at 2.) Officers Perry and Lowery were in charge of

Operation Leader. (See id. at 2–3.) Officer Marsh “aid[ed] the[]

operation” by “conducting surveillance, as well as monitoring

trackers installed on vehicles [they] were tracking.” (Marsh

Decl. (Doc. 26-3) at 2.)

The main targets of the investigation were Lee Harris, Jr.

(Plaintiff’s son), Christian Terry, and Lamar Sealy. (See Perry

Dep. (Doc. 32-3) at 100.) Other targets included Korey McLeod,

Jeremy Johnson, Tremayne McLeod, Robert Marvin McRae, Jaquay

McNeill, and Brian Scales. (See Perry Decl. (Doc. 26-1) at 2.)

Plaintiff Lee Harris, Sr. was not a target of the investigation,

nor was there any prior “indication or . . . observation of

[Plaintiff] ever dealing in narcotics.” (See Perry Dep.

(Doc. 32-3) at 100 (cleaned up).)

As part of Operation Leader, the SPPD surveilled members of

the Dope Boy Clic, as well as several locations in or near

Southern Pines. (See Perry Decl. (Doc. 26-1) at 3; Marsh Decl.

(Doc. 26-3) at 2.) Two of the locations surveilled included

Plaintiff’s house at 803 N. Sycamore Street, Aberdeen, NC, (see

Marsh Decl. (Doc. 26-3) at 2–3), and 811 West New York Avenue, a

suspected drug house for the Dope Boy Clic’s activities, (see

Perry Decl. (Doc. 26-1) at 3). Plaintiff’s house was surveilled

because it was Harris, Jr.’s “most frequented area during

daytime and nighttime while in the Moore County area.” (Ex. 9,

Warrant Appl. (Doc. 32-9) at 11.) Additionally, several of the

targets were surveilled through GPS monitoring trackers

installed upon those individuals’ vehicles. (Marsh Decl.

(Doc. 26-3) at 2.)

As records of surveillance, the officers would aggregate

notes from their individual physical surveillance that they

personally observed, (see Perry Dep. (Doc. 32-3) at 135), notes

from other officers’ physical surveillance, (see id. at 135–36),

and information from GPS trackers on the targets’ vehicles, (see

id. at 136).

In one instance while conducting surveillance at 811 W. New

York Avenue, Officer Perry observed Plaintiff handing cash to

Robert McRae, one of the targets of the investigation and a

known drug dealer — although Officer Perry does not remember

whether he observed this while conducting physical surveillance

or observed this through watching pole surveillance camera

footage. (See id. at 122–23.)

Plaintiff testified that he was visiting his mother-in-law,

who lived right next to 811 W. New York Avenue at 823 W. New

York Avenue. (See Ex. 2, Harris Dep. Tr. (“Pl. Dep.”)

(Doc. 32-2) at 107.) Plaintiff explained that the two houses are

“physically pretty [] close” and that there’s only a

“fence . . . that separates the two.” (Id. at 107.) Plaintiff

further testified that McRae had a cleaning business and that

Plaintiff paid McRae $40 for cleaning Plaintiff’s car on the day

he was surveilled by law enforcement. (See id. at 115, 116.)

Officer Perry testified that he was not aware of

Plaintiff’s mother-in-law’s address as of 2018, but acknowledged

that “her listed address is 823 West New York Avenue.” (See

Perry Dep. (Doc. 32-3) at 36.) However, Officer Marsh testified

that he was aware that Plaintiff’s mother-in-law lived next door

to 811 W. New York Avenue. (Marsh Dep. (Doc. 32-4) at 178.)

Officer Perry was aware at that time that McRae owned a car wash

business. (See Perry Dep. (Doc. 32-3) at 123.) Further, the

surveillance footage did show a car with cleaning supplies at

the house. (See Ex. 17, Rod McRae Mobile Carwash for Harris

Sr_Video 00002 (“Surveillance footage of McRae Mobile Carwash”)

(Doc. 32-17) at 00:00:02–00:01:12.) However, Officer Perry did

not recall seeing Plaintiff’s car being washed in any

surveillance footage. (See Perry Dep. (Doc. 32-3) at 123–24.)

Nor was there any surveillance footage actually showing a car

being washed.

On January 24, 2018, Officer Lowery’s surveillance notes

from conducting physical surveillance at Plaintiff’s house

stated that Harris, Jr. arrived at his father’s (Plaintiff’s)

house, went to a trash can near the driveway, went “to the rear

of the home, out of sight” for two to three minutes, and went

“inside the home using the front door” for five to ten minutes.

(Ex. 30, Jan. 24, 25 Surveillance (Doc. 32-30) at 1.)

On January 25, 2018, Officer Lowery’s surveillance notes

stated that Harris, Jr. arrived at his father’s house, retrieved

something from the front porch, entered the house, exited the

house, and placed something to the left of the door “possibly on

the floor of the porch.” (Id.) He then went to the right edge of

the property and placed or retrieved “something from underneath

a tarped item located to the right of the enclosed trailer.”

(Id.)

On January 31, 2018, Officer Lowery’s surveillance notes

stated that Harris, Jr. arrived at his father’s house and went

to “the right side of the home, near a silver in color enclosed

trailer. He then approache[d] a vehicle covered with a blue tarp

on it. He [was] over at this vehicle [for] approximately 2 to 3

minutes.” (Ex. 31, Jan. 31 Surveillance (Doc. 32-31) at 1.)

Officer Perry’s surveillance notes from that same day stated

that Harris, Jr. arrived at a “target house,” subsequently went

to his father’s house, and then went to a tarped area outside

his father’s house for several minutes. (See Perry Dep. (Doc.

32-3) at 139–40.) Officer Perry was not conducting physical

surveillance at Plaintiff’s house at that time, so Officer

Perry’s notes concerning Harris, Jr. at his father’s house

appear to be based on another officer’s surveillance. (See id.

at 140.)

On February 20, 2018, Officer Perry’s surveillance notes

state that first Harris, Jr. went to a storage locker in

Aberdeen, in which cocaine was later found. (See id. at 136–37.)

Eight minutes later, Harris, Jr. was at his father’s house. (See

id. at 137.)

B. Search of Plaintiff’s House

On February 20, 2018, Officer Perry obtained a warrant to

search 803 N. Sycamore Street, Plaintiff’s house. (See id.

at 125.) “The search warrant covered a search of the entire

residence and all vehicles located on the property.” (Perry

Decl. (Doc. 26-1) at 3.) Prior to executing the warrant that

same day, Officer Perry met with other officers in the SPPD to

plan the execution of the warrant, including Officers Marsh and

Lowery. (See Perry Dep. (Doc. 32-3) at 125–26.) Officer Lowery

did not participate in the search of Plaintiff’s house, as he

participated in a search of 1090 W. Indiana Avenue that day.

(Lowery Decl. (Doc. 26-2) at 3–4.) Officer Lowery did speak with

Officer Perry over the phone “[a]t some point during the

searches of [both] locations” “regarding the evidence obtained

at both locations.” (Id. at 3.)

Upon entering Plaintiff’s house, Officer Perry handcuffed

Plaintiff to detain him during the search and took Plaintiff

outside to interview him. (See Perry Dep. (Doc. 32-3) at 128.)

At this time, Plaintiff was not under arrest, but Officer Perry

read Plaintiff his Miranda rights nonetheless. (See id. at 129.)

During the interview, Plaintiff told Officer Perry: “I don’t do

dope. I don’t curse. I don’t drink liquor. . . . I don’t even

smoke cigarettes.” (Id. at 130.)

Officer Perry did inform Plaintiff that “this was mainly

about [Plaintiff’s] son.” (Id.) He asked Plaintiff: “Is there

any place around your house that your son goes on a regular

basis that is kind of strange?” (Id. at 154.) He also asked

Plaintiff: “Has your son brought anything here?” (Id. at 132.)

Officer Perry testified that Plaintiff responded that “nobody

comes here” and that “nobody’s brought nothing here.” (Id.

at 147–48.) Officer Perry testified that he believed Plaintiff

“stated that [Plaintiff] hadn’t seen his son at [Plaintiff’s]

property in the last month” until “earlier that day.” (See id.

at 157–58, 162.)

While executing the search warrant, Officer Kevin Dean

conducted a K9 search of Plaintiff’s property outside of

Plaintiff’s house; Officer Dean’s dog “alerted to the presence

of narcotics” on a “1994 red Cadillac that was parked on the

side of the home.” (Marsh Decl. (Doc. 26-3) at 3; see also

Ex. 4, Marsh Tr. (“Marsh Dep.”) (Doc. 32-4) at 162–63.) The

Cadillac was covered by a gray tarp. (Marsh Decl. (Doc. 26-3)

at 3.) When the gray tarp was pulled away, Officer Dean

“observed apparent drugs inside the vehicle on the floorboard

and behind the arm rest.” (Id. at 3.) The car was registered to

Plaintiff, (see Marsh Dep. (Doc. 32-4) at 151), but the license

plate had expired in 2015, (see id. at 162–63). Officer Marsh

also testified that he “believe[d] the registration was

expired,” although he did not “recall specifically [the

Communications Center] telling [him] that” when he called them

concerning the license plate. (Id. at 139–40.) The car also had

no battery. (See id. at 171.)

The driver-side door of the Cadillac was unlocked, but the

other doors were locked. (See id. at 163.) When Officer Marsh

opened the unlocked door to the Cadillac, he testified that

there was a “smell of cocaine.” (Id. at 163–64.) He found over

two ounces of cocaine and digital scales in the backseat armrest

of the car. (See id. at 152, 164–65.) “To continue the search of

the Cadillac, [he] attempted to open the trunk. It appeared to

be locked and the release from [the] inside was inoperable.”

(Marsh Decl. (Doc. 26-3) at 4.)

At some point during execution of the search warrant,

Officer Marsh or Officer Perry asked Plaintiff if Plaintiff had

a key to the Cadillac. (See Marsh Dep. (Doc. 32-4) at 169; see

also Marsh Decl. (Doc. 26-3) at 4; Perry Dep. (Doc. 32-3)

at 118, 150.) Plaintiff “took officers to his bedroom to a set

of keys that contained the Cadillac emblem,” (Perry Dep.

(Doc. 32-3) at 118); the keys were hanging on a “hook or rack”

by the door to the master bedroom, (see Marsh Dep. (Doc. 32-4)

at 169). The keys “work[ed] on the doors” of the car and

“unlocked the ignition.” (See id. at 171–72.) Although “the keys

did operate the ignition switch,” “the car would not start.”

(Marsh Decl. (Doc. 26-3) at 4.) The keys did not operate the

trunk lock, and ultimately, the trunk “had to be forced open.”

(Marsh Dep. (Doc. 32-4) at 117.) “No contraband was located

within the Cadillac’s trunk.” (Marsh Decl. (Doc. 26-3) at 4.)

The parties dispute where the keys to the Cadillac were

found. (Compare Defs.’ Br. (Doc. 27) at 5, 7–8, 17–18

(explaining that Plaintiff kept the keys to the Cadillac on his

bedroom door), with Pl.’s Resp. (Doc. 31) at 18 (arguing that

Defendants’ claims about the location or Plaintiff’s control of

the keys are inaccurate).) Officer Marsh’s report of the search

stated:

Mr. Harris walked me into his home in the northernmost

bedroom to a hanger on the wall and provided me a key

that was hanging from this location.

(Marsh Dep. (Doc. 32-4) at 169–70.) However, Officer Marsh

testified that the keys were “right by the master bedroom door,”

but he could not remember if the keys were “on the door or right

behind the door,” with the latter scenario such that the keys

would be inside the master bedroom. (Id. at 169.) Even so,

Officer Marsh explained that the keys’ location “was a piece of”

the probable cause determination. (Marsh Dep. (Doc. 32-4)

at 170.)

Additionally, “[d]uring the search of the residence, a

number of firearms were found. Most were located in

[Plaintiff’s] bedroom, but Officer Greg Powers located a

Springfield .40 caliber semiautomatic pistol in a closet in a

room used by Harris, Jr.” (Perry Decl. (Doc. 26-1) at 4.)

Plaintiff told Officer Marsh that Harris, Jr. had a “bedroom in

[Plaintiff’s] home.” (Marsh Decl. (Doc. 26-3) at 4–5.)

Additionally, Plaintiff told Officer Marsh “that any weapon

found in [Plaintiff’s] son’s room would belong to his son and

that [Plaintiff] would have no knowledge of it.” (Id. at 5.)

Officer Perry spoke with Officer Marsh after the cocaine

was found in the Cadillac. (Perry Decl. (Doc. 26-1) at 4.)

“Based on a number of factors including a significant amount of

cocaine, as well as drug paraphernalia discovered in his

vehicle, the keys to which were hanging on his bedroom door,

coupled with the . . . observation of [Plaintiff] at the New

York Ave. drug house, it was decided that [Plaintiff] would be

placed under arrest.” (Id. at 4–5.) Officer Perry placed

Plaintiff under arrest for trafficking cocaine, maintaining a

vehicle to keep controlled substances, possession with intent to

distribute cocaine, and possession of drug paraphernalia. (Id.

at 5.)

Officer Perry testified to his basis for determining that

probable cause existed to arrest Plaintiff, which included:

Plaintiff’s statement to Officer Perry that Plaintiff “hadn’t

seen his son at the property prior to that morning . . . [and]

hadn’t seen his son at the property within the past month or

two; Plaintiff’s knowledge “of the inner workings of [the]

Cadillac, [including] what doors were locked, what doors were

unlocked, the fact that it was missing a battery, the fact that

the trunk was not operable”; “the vehicle in question was

registered to” Plaintiff; Plaintiff had access to the car keys;

“Lee Harris, Jr. had so many other places that he could . . .

sell drugs from,” so “it made no sense for him to put his

parents in harm’s way [or] put their property in question by

placing drugs on his parents’ property”; and, “seeing

[Plaintiff] at 811 West New York Avenue speaking with known drug

dealers [at] the main narcotics distribution point of this

investigation.” (See Perry Dep. (Doc. 32-3) at 117–20 (cleaned

up).)

C. Criminal Proceedings Against Plaintiff

Following his arrest, Plaintiff was transported to the

Moore County Jail. (See Lowery Decl. (Doc. 26-2) at 4.) Officer

Lowery testified to the facts underlying the officers’ belief of

probable cause to arrest Plaintiff before Magistrate Judge Carol

Wright. (See id.) Officer Lowery did not inform the Magistrate

that “the car where [the SPPD] found drugs at [Plaintiff’s

house] was the same car where [he] saw Junior retrieving or

taking items to.” (Ex. 5, Lowery Tr. (“Lowery Dep.) (Doc. 32-5)

at 80–81.) Based on Officer Lowery’s testimony and the evidence

presented, Magistrate Wright concluded that probable cause

existed for Plaintiff’s arrest. (See Lowery Decl. (Doc. 26-2)

at 4–5.) Plaintiff was charged with trafficking cocaine,

maintaining a vehicle to keep controlled substances, possession

with intent to distribute cocaine, and possession of drug

paraphernalia. (See id. at 5.) After Plaintiff’s arrest, he was

held in pretrial custody for at least four months; eventually,

Plaintiff was released from pretrial custody on the condition of

electronic location monitoring. (See Ex. 27, May 1 Hearing

(Doc. 32-27) at 19, 22, 33; Ex. 26, July 10 Hearing (Doc. 32-26)

at 11–13.)

Officer Perry testified before a state grand jury as to the

facts that led him to find probable cause for Plaintiff’s

arrest. (See Perry Dep. (Doc. 32-3) at 103.) He did not testify

before the state grand jury that he, or any other officer,

observed Harris, Jr. placing items into the Cadillac in which

cocaine was found. (See id. at 103–04.)

On August 2, 2020, Plaintiff’s state charges were

dismissed, as Plaintiff had been indicted in federal court a few

days prior. (See Ex. F, State Court Dismissal (Doc. 26-6); see

also Ex. G, Federal Arrest Warrant (Doc. 26-7).) On December 14,

2020, Plaintiff’s federal charges were also dismissed. (See Ex.

H, Federal Court Dismissal (Doc. 26-8).)

On December 18, 2020, federal prosecutors filed a Factual

Basis in the federal prosecution of Harris, Jr. (Ex. 22, Rule 11

Memorandum (Doc. 32-22).) The Factual Basis noted:

On or about January 25 and January 31, 2018,

officers surveilled the residence at 803 Sycamore

Street, Aberdeen, NC. Harris Jr.’s parents live at the

Sycamore Street residence, and Harris Jr. often stayed

at the residence during 2017 and 2018. On both

surveillance occasions, Harris Jr. arrived at the

residence and then went over to a Cadillac covered

with a gray car cover for a few minutes, consistent

with placing an item in or retrieving an item from the

vehicle. Powder cocaine and crack cocaine were later

recovered from that covered Cadillac on February 20,

2018, pursuant to a search warrant.

(Id. at 2.) Officer Perry testified that federal prosecutors

would only have received this information from either himself or

Officer Lowery. (See Perry Dep. (Doc. 32-3) at 109.) Officer

Perry agreed in his deposition that the above paragraph of the

Factual Basis contradicts Officer Lowery’s surveillance notes

from January 31, 2018; Officer Perry explained that he believed

the notes say “Lee Harris, Jr., went to a car covered with a

blue tarp. There was no indication that anything was placed in

or taken out of the vehicle.” (Perry Dep. (Doc. 32-3)

at 111–12.)

D. Allegations that SPPD Threatened to Arrest Individuals

Plaintiff alleges that Chief Temme “failed to properly

supervise SPPD officers, despite having actual knowledge of the

need for better and additional training and supervision.”

(Compl. (Doc. 1) at 19.) More specifically, Plaintiff alleges

that “SPPD Chief Temme was aware of numerous . . . complaints

and at least one lawsuit against Officer Perry,” yet Chief Temme

“took no disciplinary action against Detective Perry.” (Id.)

Plaintiff testified that during the search of his house,

Aberdeen Chief of Police Carl Colasacco said: “Marsh told me to

tell you that if you didn’t cooperate with him . . . about your

son[, Marsh] was gonna take you to jail and lock you up.” (Pl.

Dep. (Doc. 32-2) at 166, 148.) Previously, Plaintiff had also

sent complaints to SPPD or SPPD’s Internal Affairs about various

officers’ conduct. (See id. at 51–61.) This included a written

complaint about Officer Perry in 2013. (See id. at 61). The SPPD

investigated the complaint and “determined . . . the complaint

was unfounded.” (Ex. J, Campbell Decl. (Doc. 26-10) at 2–3.) In

2013, Plaintiff also complained to the Wellford Police

Department of South Carolina that their officers fabricated drug

charges against his son, and Plaintiff may have but could not

remember if he filed a pro se lawsuit regarding this concern.

(See Pl. Dep. (Doc. 32-2) at 69–72.)

Martha Dickerson, Plaintiff’s mother-in-law, (id. at 162),

testified to a similar experience. (See Ex. 23, Dickerson Aff.

(Doc. 32-23) at 1.) Dickerson testified that her son, Edwin,

“was arrested on suspicion of drug-related charges.” (Id.)

“Despite having no knowledge about any criminal activity . . .,

[she] was later arrested and Officer Perry stated, ‘we are

working on you to get your son.’” (Id.) After her son entered a

plea bargain, Dickerson’s charges were dismissed. (Id. at 2.)

Another Southern Pines resident, Tracy Williams, testified

that Officer Perry contacted her to conduct a controlled

purchase of narcotics from Dickerson’s son. (Ex. 38, Tracy

Williams Aff. (Doc. 32-38) at 1.) Williams testified that

Officer Perry told her: “[I]f I didn’t do this, that he would

make sure that I would spend a lot of time in prison because of

my Criminal Record. He also told me that he would not lock me up

if I cooperated.” (Id.)

Finally, Arthur Darby testified that Officer Perry

contacted Darby about becoming a confidential informant,

“specifically to provide information on Lee Marvin Harris Jr.,

and any known drug activity in the area.” (Ex. 13, Darby Aff.

(Doc. 32-13) at 1.) Darby further testified that “[e]ven after I

repeatedly told [Officer Perry] that I had no information to

give, Officer Perry made numerous attempts to coerce me into

falsifying evidence to help build his cases.” (Id. at 2.) Darby

filed a pro se complaint in this district against Officer Perry

and the SPPD. (See Ex. 12, Darby Suit (Doc. 32-12); see also

Compl., Darby v. Perry, No. 13-cv-185 (M.D.N.C. Apr. 29, 2013),

Doc. 2.) Darby’s complaint was ultimately dismissed without

prejudice for failure to state a claim upon which relief may be

granted, pursuant to 28 U.S.C. § 1915(e)(2)(B). Order and

Recommendation, Darby v. Perry, No. 13-cv-185 (M.D.N.C. Mar. 20,

2013), Doc. 4, recommendation adopted, J. Darby v. Perry,

No. 13-cv-185 (M.D.N.C. Apr. 29, 2013), Doc. 6.

III. LEGAL STANDARD

Summary judgment is appropriate when “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); see Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). When reviewing a

summary judgment motion, the court must view all evidence in the

light most favorable to the nonmoving party. See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88

(1986). This court’s summary judgment inquiry is whether the

evidence “is so one-sided that one party must prevail as a

matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251–52 (1986).

The moving party bears the initial burden of demonstrating

“that there is an absence of evidence to support the nonmoving

party’s case.” Celotex Corp., 477 U.S. at 325. If the “moving

party discharges its burden . . ., the nonmoving party then must

come forward with specific facts showing that there is a genuine

issue for trial.” McLean v. Patten Cmtys., Inc., 332 F.3d 714,

718–19 (4th Cir. 2003) (citing Matsushita Elec. Indus. Co, 475

U.S. at 586-87). Summary judgment “should be granted unless a

reasonable jury could return a verdict for the nonmoving party

on the evidence presented.” Id. at 719 (citing Liberty Lobby,

477 U.S. at 247–48).

IV. ANALYSIS

Against Officer Defendants, Plaintiff alleges claims for

malicious prosecution under 42 U.S.C. § 1983 and North Carolina

state law, fabrication of evidence under § 1983, and failure to

intervene under § 1983. (See Compl. (Doc. 1) at 11–18.)

Plaintiff also alleges a Monell claim for failure to train or

supervise under § 1983 against City Defendants. (See id.

at 19–20.) Defendants move for summary judgment on all of

Plaintiff’s claims. (Defs.’ Br. (Doc. 27) at 2.) Plaintiff’s

malicious prosecution claims fail under both § 1983 and North

Carolina law because there was probable cause for Plaintiff’s

arrest. Plaintiff’s fabrication of evidence claim fails because

Plaintiff was held in pretrial custody and not ultimately

convicted of any charges. Plaintiff’s failure to intervene claim

fails because Plaintiff has not created a genuine issue of

material fact as to the existence of any underlying

constitutional violation. Lastly, Plaintiff’s Monell claim fails

because Plaintiff does not forecast evidence to create a genuine

issue of material fact that City Defendants were deliberately

indifferent to individuals’ constitutional rights.

A. Malicious Prosecution

Plaintiff alleges claims for malicious prosecution in

violation of the Fourth Amendment against Officer Defendants

under 42 U.S.C 1983 and under North Carolina state law. (Compl.

(Doc. 1) at 11–14, 16–18.) “A malicious prosecution claim

brought under section 1983 is properly understood as a Fourth

Amendment claim for unreasonable seizure which incorporates

certain elements of the common law tort.” Hupp v. Cook, 931 F.3d

307, 323–24 (4th Cir. 2019) (internal citation and quotation

marks omitted). “To prove such a claim, a plaintiff must show

that the defendant (1) caused (2) a seizure of the plaintiff

pursuant to legal process unsupported by probable cause, and

(3) criminal proceedings terminated in plaintiff’s favor.” Id.

at 324 (internal citation and quotation marks omitted) (emphasis

added). Similarly, a claim for malicious prosecution under North

Carolina law requires a showing “that the defendant (1)

initiated or participated in the earlier proceeding, (2) did so

maliciously, (3) without probable cause, and (4) the earlier

proceeding ended in favor of the plaintiff.” Turner v. Thomas,

369 N.C. 419, 425, 794 S.E.2d 439, 444 (2016) (emphasis added).

Thus, under both § 1983 and North Carolina law, a showing that

an arrest was made with probable cause will defeat a malicious

prosecution claim arising from that arrest. Plaintiff fails to

meet his burden of forecasting sufficient evidence to create a

genuine issue of material fact that Officer Defendants lacked

probable cause to arrest him. Thus, Plaintiff’s claims for

malicious prosecution fail.

“To determine whether an officer had probable cause for an

arrest, ‘we examine the events leading up to the arrest, and

then decide whether these historical facts, viewed from the

standpoint of an objectively reasonable police officer, amount

to probable cause.’” D.C. v. Wesby, 138 S. Ct. 577, 586 (2018)

(quoting Md. v. Pringle, 540 U.S. 366, 371 (2003)). “Because

probable cause deals with probabilities and depends on the

totality of the circumstances, it is a fluid concept that is not

readily, or even usefully, reduced to a neat set of legal

rules.” Id. (internal quotations omitted). It “requires only a

probability or substantial chance of criminal activity, not an

actual showing of such activity.” Illinois v. Gates, 462 U.S.

213, 243 n. 13 (1983). Probable cause is determined by a

“totality of the circumstances approach.” Id. at 213.

In United States v. Solomon, law enforcement arrested the

defendant without a warrant after conducting a search of the

defendant’s residence and neighboring areas. No. 1:11CR32-1,

2011 WL 1704721, at *15 (M.D.N.C. May 4, 2011), aff’d, 480 F.

App’x 732 (4th Cir. 2012). During that search, officers found

incriminating evidence, including boxes of ammunition that the

defendant was not permitted to own as a convicted felon, scales

containing a white powder residue, and drugs. See id. The court

“agree[d]” that probable cause existed for a warrantless arrest

of the defendant upon finding the “incriminating evidence.” —

the ammunition, scales, and drugs. Id. The court explained that

finding “three boxes of ammunition inside Solomon’s residence

clearly warranted the belief that Solomon had committed or was

committing a federal offense, namely, possession of ammunition

by a convicted felon,” so “probable cause existed at this point

to support a warrantless arrest.” Id.

In Ker v. Cal., when state law enforcement officers had

probable cause to arrest George Ker for marijuana possession,

the Supreme Court held that there also existed probable cause

for arresting George Ker’s wife, as marijuana was found in their

apartment in plain view. See 374 U.S. 23, 36–37 (1963). The

Supreme Court explained:

Probable cause for the arrest of petitioner Diane

Ker, while not present at the time the officers

entered the apartment to arrest her husband, was

nevertheless present at the time of her arrest. Upon

their entry and announcement of their identity, the

officers were met not only by George Ker but also by

Diane Ker, who was emerging from the kitchen. Officer

Berman immediately walked to the doorway from which

she emerged and, without entering, observed the brick-

shaped package of marijuana in plain view. Even

assuming that her presence in a small room with the

contraband in a prominent position on the kitchen sink

would not alone establish a reasonable ground for the

officers’ belief that she was in joint possession with

her husband, that fact was accompanied by the

officers’ information that Ker had been using his

apartment as a base of operations for his narcotics

activities. Therefore, we cannot say that at the time

of her arrest there were not sufficient grounds for a

reasonable belief that [Diane] Ker, as well as her

husband, [was] committing the offense of possession of

marijuana in the presence of the officers.

Id.

In Taylor v. Walters, a Fourth Circuit panel explained that

a law enforcement officer “could reasonably have believed that

the facts known to him were sufficient to establish probable

cause for [the plaintiff’s] arrest.” 81 F.3d 429, 435 (4th Cir.

1996). The court went on to explain the facts consistent with

probable cause: the plaintiff had lived with a “confessed

narcotics dealer” for many years, the shared apartment was “a

base of operations for . . . drug distribution activities,” a

pot with white residue, consistent with “convert[ing] cocaine

into cocaine base” was in plain view in the kitchen, the

defendant had knowledge of the pot’s existence, plastic bags

“routinely used for packaging and distributing illegal drugs”

were located nearby, “an envelope containing a white powdery

substance” was found, and “the large amount of currency in [the

plaintiff’s] bedroom and the information disclosed in his bank

statements were consistent with his involvement in a cocaine

distribution conspiracy.” Id. Although the court ultimately

declined to decide the issue of probable cause, the court

concluded that the officer was “entitled to qualified immunity

on [the plaintiff’s] § 1983 claim alleging that his arrest and

prosecution were unsupported by probable cause.” Id.

Here, Plaintiff does not forecast sufficient evidence to

cast doubt on Officer Defendants’ reasonable determination that

probable cause existed to arrest Plaintiff without a warrant.3

“[F]or probable cause to exist, there need only be enough

evidence to warrant the belief of a reasonable officer that an

offense has been or is being committed; evidence sufficient to

convict is not required.” Durham v. Horner, 690 F.3d 183, 190

(4th Cir. 2012) (quoting Brown v. Gilmore, 278 F.3d 362, 367

(4th Cir. 2002)) (analyzing § 1983 malicious prosecution claim)

(cleaned up). Officer Perry testified to the facts known to

Officer Defendants at the time of Plaintiff’s arrest that

supported their probable cause determination: surveillance that

showed Plaintiff engaging in a hand-to-hand cash transaction

with a known drug distributor, discovery of over two ounces of

cocaine and drug paraphernalia in a Cadillac on Plaintiff’s

property, the Cadillac being registered to Plaintiff,

Plaintiff’s custody of the keys to the Cadillac, and Plaintiff’s

knowledge of and control over the Cadillac in which the

narcotics were found. (See Perry Dep. (Doc. 32-3) at 117–20.)

3 Courts have often found probable cause for a warrantless

arrest following discovery of unlawful contraband. See, e.g.,

Solomon, 2011 WL 1704721, at *15; Ker, 374 U.S. at 36–37;

Taylor, 81 F.3d at 435.

Officer Defendants also knew that another known drug

distributor, Harris, Jr., stayed at Plaintiff’s home and was

seen going in and around the Cadillac. (See Perry Dep.

(Doc. 32-3) at 139–40.) Although Lee Harris, Jr.’s use of the

Cadillac suggests Plaintiff did not have exclusive possession of

the Cadillac, Plaintiff’s possession may also be constructive

and joint.

Like in Solomon, the finding of illegal contraband on

Plaintiff’s property alone provides probable cause for his

warrantless arrest. Solomon, 2011 WL 1704721, at *15. In Ker,

drugs found in a common area — the kitchen — was enough to

“establish a reasonable ground for the officers’ belief that

[Diane Ker] was in joint possession with her husband,”

particularly when the officers knew her husband had been using

the apartment as a base of operations; all of which supported a

finding of probable cause for her warrantless arrest. See Ker,

374 U.S. at 36–37. Even in Taylor, in which no drugs were

actually found, the Fourth Circuit explained that “the facts

known to [the law enforcement officer] appear[ed] more than

adequate to support a finding of probable cause for Taylor’s

arrest.” Taylor, 81 F.3d at 435. Here, illegal cocaine and drug

paraphernalia were found in a Cadillac on Plaintiff’s property,

and Plaintiff had control over the Cadillac, as demonstrated by

the Cadillac’s registration in his name, Plaintiff’s possession

of the car key that operated the ignition, and Plaintiff’s

knowledge of which doors on the Cadillac were unlocked. Those

facts support Officer Defendants’ reasonable belief that

Plaintiff was, at minimum, in constructive possession of the

narcotics found in the Cadillac.4 See United States v. Shorter,

328 F.3d 167, 172 (4th Cir. 2003) (explaining that contraband

found in the defendant’s home “permits an inference of

constructive possession,” even when some of the contraband was

4 “A defendant may have constructive possession of

contraband even if it is not in his immediate possession or

control.” United States v. Shorter, 328 F.3d 167, 172 (4th Cir.

2003). “Constructive possession may be proved by demonstrating

that the defendant exercised, or had the power to exercise,

dominion and control over the item.” United States v. Jackson,

124 F.3d 607, 610 (4th Cir. 1997) (internal citation and

quotation marks omitted). “Constructive possession requires

‘ownership, dominion, or control over the contraband or the

premises or vehicle in which the contraband was concealed’ and

‘knowledge of the presence of the contraband.’” United States v.

Moody, 2 F.4th 180, 189 (4th Cir. 2021). “If a factfinder

determines a driver had dominion and control of a vehicle, that

is sufficient to establish constructive possession of contraband

hidden in that vehicle.” Id. at 191. Although Plaintiff was not

driving the vehicle at the time of the search, this court

concludes the undisputed evidence is sufficient to establish

Plaintiff’s dominion and control of the vehicle at the time of

the search. The totality of the circumstances requires

consideration of the facts related to Plaintiff’s dominion and

control of the vehicle and any relevant additional facts

including the fact that Plaintiff engaged in a hand-to-hand

transaction with a target of the investigation in front of a

suspected drug house at 811 West New York Avenue, (Doc. 26-1

at 3).

“Constructive possession may be proved by circumstantial as

well as direct evidence.” Id. And contraband need not be in

plain view for a defendant to constructively possess it. See

Shorter, 328 F.3d at 172. Here, the evidence is largely

circumstantial and a trial on the merits or the benefit of a

review of additional evidence following Plaintiff’s arrest may

show that any inferences drawn at the time of the arrest were

not correct. Nevertheless, the issue of whether probable cause

exists is based upon “the information the officers had at the

time they sought the warrant,” Smith v. Munday, 848 F.3d 248,

253 (4th Cir. 2017), and not after consideration of later-

disclosed or received evidence.

“not in plain view”); cf. United States v. Kitchen, 57 F.3d 516,

519–21 (7th Cir. 1995) (affirming conviction for constructive

possession of firearm found in dresser drawer when evidence

indicated that the defendant had access to the bedroom where the

dresser was located); United States v. Surratt, 172 F.3d 559,

564 (8th Cir. 1999) (holding that evidence supported finding of

constructive possession of narcotics, even though the narcotics

were concealed). Moreover, the combination of finding narcotics

and surveillance of Plaintiff engaging in a hand-to-hand cash

transaction with a known drug distributor “provides ample

evidence for a reasonable law enforcement officer to believe”

Plaintiff was somehow involved with the drugs found, supporting

probable cause for a warrantless arrest. See Durham, 690 F.3d at

190.

Plaintiff argues that there was an innocent explanation for

the hand-to-hand transaction and that the drugs on his property

were not his; Plaintiff also argues that Officer Defendants knew

or should have known the drugs were not his, given Officer

Lowery’s surveillance notes showing Lee Harris, Jr., going to

the tarped area and tarp-covered car. (Pl.’s Resp. (Doc. 31) at

17–20.) “Contrary to [Plaintiff’s] assertions, [Officer

Defendants] [were] ‘not required to exhaust every potentially

exculpatory lead or resolve every doubt about [Plaintiff’s]

guilt before probable cause was established.’” See Durham, 690

F.3d at 190 (citation omitted). Even so, this court will address

each of Plaintiff’s contentions in turn.

First, Plaintiff argues that Officer Defendants should have

known that the surveillance at 811 W. New York Avenue of

Plaintiff handing cash to McRae, one of the targets of the

investigation and a known drug dealer, (see Perry Dep.

(Doc. 32-3) at 122–23), was actually paying McRae for washing

Plaintiff’s car while Plaintiff visited his mother-in-law.

(Pl.’s Br. (Doc. 31) at 19.) In support, Plaintiff points to

several facts: Plaintiff testified that he was visiting his

mother-in-law, who lived right next to 811 W. New York Avenue at

823 W. New York Avenue, (see Pl. Dep. (Doc. 32-2) at 107);

Officer Perry was aware at that time that McRae owned a car wash

company, (see Perry Dep. (Doc. 32-3) at 123); and Officer Perry

at some point knew that Plaintiff’s mother-in-law lived at 823

W. New York Avenue, (see id. at 36–37). Plaintiff further

contends that the “SPPD surveillance videos prove that the

alleged ‘hand to hand’ transaction was nothing more than payment

for a car wash.” (Pl.’s Resp. (Doc. 31) at 19.) However, the

surveillance footage did not show a car being washed, nor did

Officer Perry recall seeing Plaintiff’s car being washed in any

surveillance footage. (See Perry Dep. (Doc. 32-3) at 123–24.)

“[W]hen it is considered in the light of all of the

surrounding circumstances, even ‘seemingly innocent activity’

may provide a basis for finding probable cause.” Porterfield v.

Lott, 156 F.3d 563, 569 (4th Cir. 1998) (quoting Taylor v.

Waters, 81 F.3d 429, 434 (4th Cir. 1996)); see also Wadkins v.

Arnold, 214 F.3d 535, 540–42 (4th Cir. 2000) (explaining that

when a law enforcement officer reasonably believed that probable

cause existed for arrest, the officer need not pursue every

potentially exculpatory lead, ultimately finding that the

officer was entitled to qualified immunity on the plaintiff’s

malicious prosecution claim). Even though Plaintiff provides an

innocent explanation for the hand-to-hand cash transaction, when

the transaction’s circumstances — a cash transaction with a

suspected drug dealer in front of a suspected drug house — are

considered alongside the narcotics found on Plaintiff’s

property, it provides a reasonable basis for finding probable

cause. Cf. United States v. Ward, 465 F. App’x 260, 262 (4th

Cir. 2012) (explaining that a defendant’s hand—to-hand cash

transaction, when considered alongside informants’ statements

that drug activity occurred at the defendant’s residence and

apprehending a customer who admitted to buying marijuana from

defendant, provided reasonable suspicion that defendant was

engaging in criminal activity). Although the evidence may be

susceptible to different interpretations and probable cause may

be defeated in proceedings following arrest, that does not mean

probable cause did not exist at the time of Plaintiff’s arrest.

Second, Plaintiff argues that Officer Defendants knew from

their surveillance of Plaintiff’s house that the drugs found in

the Cadillac were Harris, Jr.’s, not Plaintiff’s. (See Pl.’s

Resp. (Doc. 31) at 17.) Further, Plaintiff contends that

“Defendants’ claims about the Cadillac keys are rife with

inaccuracies or fabrications that when clarified prove the keys

were accessible to anyone in the household.” (See id. at 18.) At

most, this argument suggests that Plaintiff may not have had

exclusive access to or control over the Cadillac and drugs found

inside, not that Plaintiff had no access to or control over the

Cadillac or the drugs found inside.

This is akin to Ker, where there was probable cause to

support joint possession of marijuana found in a common area of

the apartment. 374 U.S. at 36–37. Although the narcotics in Ker

supporting the probable cause determination were in plain view

“in a prominent position on the kitchen sink,” id. at 36–37,

while the narcotics found here were found in a Cadillac on

Plaintiff’s property, Officer Defendants’ observation of

Plaintiff engaging in a hand-to-hand cash transaction with a

known drug distributor provides an additional basis for probable

cause.

Similarly, in United States v. Myers, the Fourth Circuit

held that “[w]hen a law enforcement officer finds illegal drugs

in an automobile that the officer has legally stopped and

searched and none of the occupants claim ownership of the drugs,

it is ‘entirely reasonable’ for the officer to infer that all

the automobile’s occupants are in a common enterprise and

therefore to arrest them on probable cause that they are

committing a crime.” 986 F.3d 453, 454 (2021). The court

explained that “this [was] not a case where ‘mere propinquity to

others independently suspected of criminal activity’ [was]

advanced as the basis for probable cause.” Id. at 457. Instead,

the car occupants knew each other or had a preexisting

arrangement with each other, and the drugs were “readily

accessible” to them both. See id. at 457–58. Although the facts

here suggest the Cadillac may be more like a storage area than a

car, Myers is still helpful to show that multiple individuals’

access to illegal drugs provided probable cause to arrest all

the individuals present. See id.

Here, drawing all reasonable inferences in Plaintiff’s

favor as required at this stage of proceedings, the undisputed

facts are as follows:

1. Regardless of whether the keys to the Cadillac were

handed to Marsh or where the keys were hanging, Plaintiff

admits that he showed Officer Marsh where the keys to the

Cadillac were located. (See Marsh Dep. (Doc. 32-4) at

169; Perry Dep. (Doc. 32-3) at 118; Harris Dep.

(Doc. 32-2) at 134.)

2. One of the keys found “operate[d] the ignition switch” of

the Cadillac.5 (Marsh Decl. (Doc. 26-3) at 4; see also

Marsh Dep. (Doc. 32-3) at 171.)

3. The location of the keys — on the outside of the bedroom

door — suggests the keys were accessible to anyone in the

household.

4. The Cadillac was parked on Plaintiff’s property, where

Plaintiff resided with his wife and where Plaintiff’s

son, Harris, Jr., sometimes resided. (See Marsh Decl.

(Doc. 26-3) at 2–3.)

5. The Cadillac was registered to Plaintiff until at least

2015. (See Marsh Dep. (Doc. 32-4) at 151, 162.) Although

the registration was expired, (id. at 139), Plaintiff did

not forecast any evidence that ownership of the Cadillac

was transferred to anyone else, including Plaintiff’s

son.

6. Drugs and drug paraphernalia were found in the Cadillac,

and they were in plain view once the tarp covering the

Cadillac was removed. (See Marsh Decl. (Doc. 26-3) at 3.)

5 Plaintiff argues that none of the keys operated the door

locks and only one of the three keys operated the ignition.

(Doc. 31 at 18.) These may be facts consistent with Plaintiff’s

innocence of an offense. However, with respect to constructive

possession and a totality of the circumstances analysis,

possession of a key and knowledge of where that key is located

are evidence of constructive possession.

7. Plaintiff was observed engaging in a cash transaction

with a known drug dealer at a house suspected to be a

drug house for the Dope Boy Clic’s activities. (See Perry

Dep. (Doc. 32-3) at 122–23.)

Plaintiff offers no factual support for his argument that

Officer Defendants knew Plaintiff paid McRae for a car wash.

(See Pl.’s Resp. (Doc. 31) at 19.) It is possible that Officer

Defendants did not see a car wash occur and only saw a payment

made to a known drug dealer driving a trailer with cleaning

supplies; nonetheless, that standing alone is not sufficient to

create a genuine dispute of material fact that Officer

Defendants were aware that a car wash occurred or that the hand-

to-hand transaction was payment for a car wash.

Additionally, it is relatively undisputed that the keys to

the Cadillac may have been accessible to anyone in the house.

However, that fact is not sufficient to create a genuine dispute

of material fact concerning Plaintiff’s possession — whether

actual or constructive, sole or joint — of the Cadillac in which

the drugs and drug paraphernalia were found. Plaintiff has not

presented evidence that anyone else exercised possession of the

key or the car in a manner sufficient to negate the reasonable

inferences drawn from the totality of the circumstances; those

circumstances include the fact that Plaintiff was the last known

and admitted owner of the vehicle.

Similarly, Plaintiff’s argument that the Cadillac was

inoperable also does not raise a genuine dispute of material

fact concerning Plaintiff’s possession of the Cadillac and its

contents, as the undisputed facts show that Plaintiff had access

to and control over the Cadillac, regardless of whether it was

or could be driven.

Although Officer Defendants may have known from their

surveillance that Harris, Jr. previously “went over to [the]

Cadillac . . . for a few minutes, consistent with placing an

item in or retrieving an item from the vehicle,” (Ex. 22, Rule

11 Memorandum (Doc. 32-22) at 2), that fact does not negate

Officer Defendants’ reasonable belief that Plaintiff also had

possession of the drugs found in the Cadillac. And “once

probable cause to arrest a suspect is established, an officer is

not required to continue to investigate for exculpatory evidence

before arresting such suspect.” United States v. Galloway, 274

F. App’x 241, 249 (4th Cir. 2008). Assuming that the officer’s

observations of Harris, Jr. going to the car connect Harris, Jr.

to the contents of the car, it does not dispel Plaintiff’s

connection to the car and its contents. Harris Jr.’s guilt of

drug distribution is not necessarily evidence of Plaintiff’s

innocence of the offense, nor does it diminish the presence of

probable cause if otherwise present. That exculpatory evidence

may have existed does not negate the probable cause established

by finding illegal narcotics in a common area of Plaintiff’s

property over which Plaintiff had possession and control.

Accordingly, this court finds that Officer Defendants had

probable cause to arrest Plaintiff upon finding cocaine in the

Cadillac on Plaintiff’s property, even if Officer Defendants

knew that Plaintiff’s son also entered the Cadillac previously.6

Because probable cause existed for Plaintiff’s arrest,

6 Plaintiff argues that Officer Defendants omitted allegedly

exculpatory information material to the probable cause

determination before the Magistrate Judge, the grand jury, and

prosecutors. (See Pl.’s Resp. (Doc. 31) at 19–20.) However,

since probable cause to arrest Plaintiff existed even

considering the alleged exculpatory information, omission of

that information does not impact the probable cause analysis.

Stated another way, the facts Plaintiff argues are material to

determining probable cause, (see id.), do not negate the

existence of probable cause to arrest Plaintiff following

Officer Marsh’s discovery of cocaine in the Cadillac,

particularly given prior surveillance of Plaintiff engaging in a

hand-to-hand cash transaction with a known drug distributor at a

location suspected to be a drug house for the Dope Boy Clic’s

activities.

Plaintiff’s federal and state law claims for malicious

prosecution both fail.7

7 In the alternative, Defendants argue that Plaintiff’s

claim under § 1983 is barred by qualified immunity and that

Plaintiff’s claim under state law is barred by public official

immunity. (Defs.’ Br. (Doc. 27) at 18–21.) Because this court

finds probable cause for Plaintiff’s arrest, this court need not

reach the issues of qualified immunity or public official

immunity definitively.

Even so, “[g]overnment officials performing discretionary

functions are entitled to qualified immunity from liability for

civil damages to the extent that ‘their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.’” Wilson v. Layne, 141

F.3d 111, 114 (4th Cir. 1998), aff’d, 526 U.S. 603 (1999)

(quotation omitted). “Qualified immunity protects ‘all but the

plainly incompetent or those who knowingly violate the law.’”

Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “It

protects law enforcement officers from ‘bad guesses in gray

areas’ and ensures that they are liable only ‘for transgressing

bright lines.’” Id. (quoting Maciariello v. Sumner, 973 F.2d

295, 298 (4th Cir. 1992)). “Qualified immunity protects officers

who commit constitutional violations but who, in light of

clearly established law, could reasonably believe that their

actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th

Cir. 2011). The qualified immunity defense is a two-step inquiry

“that asks first whether a constitutional violation occurred and

second whether the right was clearly established.” Id.

(quotation omitted). A clearly established right is one that is

“sufficiently clear [such] that every reasonable official would

have understood that what he is doing violates that right.”

Reichle v. Howards, 566 U.S. 658, 664 (2012) (cleaned up).

In light of the cases described herein, finding probable

cause to arrest upon discovery of illegal contraband in a home

or a vehicle, a reasonable law enforcement officer would not

have understood that arresting Plaintiff upon finding narcotics

on his property violated a clearly established constitutional

right. See Durham, 690 F.3d at 190; Solomon, 2011 WL 1704721, at

*15; Ker, 374 U.S. at 36–37; Taylor, 81 F.3d at 435. Thus,

Officer Defendants are also entitled to qualified immunity on

Plaintiff’s malicious prosecution claim under § 1983.

B. Fabrication of Evidence

Plaintiff alleges a fabrication of evidence claim under

42 U.S.C. § 1983 against Officer Defendants. (Compl. (Doc. 1)

at 14–15.) The alleged fabricated evidence here, “through false

statements and material omissions,” is: (1) evidence that

Harris, Jr. had placed or removed items, namely illegal

narcotics, from the Cadillac on Plaintiff’s property;

(2) evidence that others in Plaintiff’s household had access to

the keys to the Cadillac; (3) evidence that the Cadillac was

inoperable and had an inactive registration; and (4) evidence

that Plaintiff’s hand-to-hand transaction with McRae was payment

for a car wash. (Pl.’s Resp. (Doc. 31) at 21–22.) The elements

of a due process claim based on fabrication of evidence include

both fabrication of evidence and a loss of liberty. See Massey

v. Ojaniit, 759 F.3d 343, 354 (4th Cir. 2014). As Plaintiff’s

criminal charges were eventually dismissed, (see Ex. F, State

Court Dismissal (Doc. 26-6); Ex. H, Federal Court Dismissal

(Doc. 26-8)), Plaintiff alleges his pretrial detention is the

loss of liberty sufficient to establish a due process claim.

(Pl.’s Resp. (Doc. 31) at 21.)

“We have recognized a due process right not to be deprived

of liberty as a result of the fabrication of evidence by a

government officer acting in an investigating activity.” Massey,

759 F.3d at 354 (quotation omitted). “Fabrication of evidence

alone is insufficient to state a claim for a due process

violation; a plaintiff must plead adequate facts to establish

that the loss of liberty — i.e., his conviction and subsequent

incarceration — resulted from the fabrication.” Id. (citing

Washington v. Wilmore, 407 F.3d 274, 282–83 (4th Cir. 2005)).

“The plaintiff must also be able to show that, despite any

intervening acts of independent decision-makers, the ‘conviction

was a reasonably foreseeable result of the initial act of

fabrication.’” Id. (quoting Washington, 407 F.3d at 283.)

Ultimately, Plaintiff’s due process fabrication of evidence

claim fails because the charges against Plaintiff were dismissed

and the alleged loss of liberty was pretrial detention. Courts

consider claims concerning unlawful pretrial detention as

arising under the Fourth Amendment. See Albright v. Oliver, 510

U.S. 266, 273–74 (1994) (plurality opinion) (explaining that

claims for pretrial deprivation of liberty are properly brought

under the Fourth Amendment, not the Fourteenth Amendment’s due

process clause); see Manuel v. City of Joliet, 580 U.S. 357,

365–67 (2017) (rejecting a plaintiff’s attempt to frame a claim

about unlawful pretrial detention as a Fourteenth Amendment due

process claim instead of a Fourth Amendment claim). Yet a

fabrication of evidence claim is properly understood as arising

under the Fourteenth Amendment’s due process clause. See

Washington, 407 F.3d at 283–84 (relying upon the Fourteenth

Amendment in identifying a constitutional right not to be

deprived of one’s liberty due to fabrication of evidence); Glass

v. Anne Arundel Cnty., 38 F. Supp. 3d 705, 720 (D. Md. 2014),

aff’d, 716 F. App’x 179 (4th Cir. 2018) (“There is a Fourteenth

Amendment due process ‘right not to be deprived of liberty as a

result of the fabrication of evidence by an investigating

officer.’”) (citation omitted); Taylor v. Deaver, No. 5:11-CV-

341-H, 2012 WL 12905868, at *3 (E.D.N.C. Sept. 28, 2012) (“[T]he

Fourth Circuit recognized that the Fourteenth Amendment

guarantees individuals the ‘right not to be deprived of liberty

as a result of the fabrication of evidence by a government

officer acting in an investigating capacity.’”) (citation

omitted).

The Fourth Circuit has only recognized a fabrication of

evidence claim when that fabrication of evidence resulted in a

criminal conviction, not pretrial detention. See Wilmore, 407

F.3d at 283–84; Massey, 759 F.3d at 354. The Fourth Circuit has

not yet recognized a due process violation for fabrication of

evidence when the charges against a plaintiff were dismissed or

when the plaintiff was not convicted of any crime and the

plaintiff’s “loss of liberty” consisted of pretrial detention.

See Osborne v. Georgiades, No. 14-CV-182, 2017 WL 3978485, at *6

(D. Md. Sept. 11, 2017) (explaining that a fabrication of

evidence claim under the Fourteenth Amendment does not provide a

remedy for pretrial detention), aff’d, 778 F. App’x 220 (4th Cir

2019) (per curiam) (unpublished); McDougald v. Kersey, No. 1:20-

CV-666, 2022 WL 17091685, at *7 (M.D.N.C. Nov. 21, 2022)

(granting summary judgment in favor of law enforcement officer

on a fabrication of evidence claim for wrongful pretrial

detention). Without addressing whether Officer Defendants did or

did not fabricate evidence, this court finds that Plaintiff’s

claim for fabrication of evidence resulting in pretrial

detention fails as a matter of law. Accordingly, this court will

grant summary judgment in favor of Officer Defendants as to this

claim.

C. Failure to Intervene

Plaintiff alleges a failure to intervene claim under 42

U.S.C. § 1983 against Officer Defendants. (Compl. (Doc. 1)

at 15–16.) Plaintiff alleges that Officer Defendants were

present for and aware of multiple constitutional violations —

specifically, Plaintiff’s warrantless arrest that lacked

probable cause and resulted from fabrication of evidence — and

that Officer Defendants failed to intervene to prevent these

constitutional violations. (Id.)

A “failure to intervene claim” arises as a theory of

“bystander liability,” in which there is “an omission to

act . . . coupled with a duty to act.” Randall v. Prince

George’s Cnty., 302 F.3d 188, 202–03 (4th Cir. 2002). “[A]n

officer may be liable under § 1983, on a theory of bystander

liability, if he: (1) knows that a fellow officer is violating

an individual’s constitutional rights; (2) has a reasonable

opportunity to prevent the harm; and (3) chooses not to act.”

Id. at 204 (footnote omitted). When there is no underlying

constitutional violation, a plaintiff’s claim for failure to

intervene also fails. See Dodson v. Prince George’s Cnty.,

No. JKS 13-2916, 2016 WL 67255, at *3 (D. Md. Jan. 6, 2016)

(“Because the excessive force claim fails, the failure to

intervene claim also fails.”); see also Marshall v. Odom, 156 F.

Supp. 2d 525, 531 (D. Md. 2001) (“In the absence of any

underlying use of excessive force against the Plaintiff,

liability cannot be placed on . . . Officer Tindal for failing

to intervene . . . .”); Hinkle v. City of Clarksburg, W. Va., 81

F.3d 416, 420–21 (4th Cir. 1996) (holding that a claim for

bystander liability was inapplicable when a jury rejected the

plaintiff-appellant’s claim of excessive force). Plaintiff has

not raised a genuine issue of material fact that an underlying

constitutional violation occurred in the first place. This court

has found that Plaintiff’s claims for malicious prosecution, see

supra Section IV.A, and fabrication of evidence, see supra

Section IV.B, both fail. Accordingly, Plaintiff’s failure to

intervene claim also fails as a matter of law. Summary judgment

will be granted in favor of Officer Defendants as to Plaintiff’s

failure to intervene claim.

D. Failure to Train or Supervise and Monell Liability

Plaintiff alleges a Monell claim for failure to train or

supervise under 42 U.S.C. § 1983 against Chief of Police Robert

Temme and the Town of Southern Pines. (Compl. (Doc. 1)

at 19–20.) Plaintiff argues that “[t]he Town of Sothern Pines is

liable under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)

for a custom, pattern and practice of arresting or threatening

innocent individuals in an attempt to coerce them into falsely

testifying against others.” (Pl.’s Resp. (Doc. 31) at 22.)

Plaintiff alleges that “SPPD Chief Temme was aware of

numerous . . . complaints and at least one lawsuit against

Officer Perry,” yet Chief Temme “took no disciplinary action

against Detective Perry.” (Compl. (Doc. 1) at 19.) Plaintiff

alleges that Chief Temme “failed to properly supervise SPPD

officers, despite having actual knowledge of the need for better

and additional training and supervision.” (Id.) Ultimately,

Plaintiff alleges that City Defendants’ “failure to train and

properly supervise officers accused or guilty of misconduct is a

pattern and practice of the SPPD” and that Chief Temme

“authorized this failure to train and supervise.” (Id. at 20.)

“Local governing bodies . . . can be sued directly under

§ 1983 for monetary, declaratory, injunctive relief where . . .

the action that is alleged to be unconstitutional implements or

executes a policy statement, ordinance, regulation, or decision

officially adopted and promulgated by that body’s officers.”

Monell, 436 U.S. at 690. “[A] municipality cannot be held liable

solely because it employs a tortfeasor . . . in other words, a

municipality cannot be held liable under § 1983 on a respondeat

superior theory.” Id. at 691 (emphasis omitted). “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.” Id.

at 694.

“To establish municipal liability under section 1983, the

plaintiff must prove the existence of an official policy or

custom of the municipality that proximately caused the

deprivation of his rights.” Wright v. Town of Glenarden, 89 F.3d

831, at *3 (4th Cir. 1996) (table decision) (citing Spell v.

McDaniel, 824 F.2d 1380, 1385–87 (4th Cir. 1987)).

Municipal policies include formal and informal

decisions made by municipal officials authorized to

make final decisions. Municipal customs are

established by persistent, widespread practices of

municipal officials, whether specifically authorized

or not, which are so permanent and well settled as to

have the force of law. Such practices are attributable

to a municipality when they become so frequent in

occurrence that actual or constructive knowledge is

imputed.

Id. (internal citations omitted). Additionally, “the inadequacy

of police training may serve as the basis for § 1983 liability,”

but “only where the failure to train amounts to deliberate

indifference to the rights of persons with whom the police come

into contact.” City of Canton v. Harris, 489 U.S. 378, 388

(1989). Plaintiff’s Monell claim fails for two reasons.

First, because this court has found that Plaintiff suffered

no constitutional deprivation, there is no basis for municipal

liability even if Plaintiff could establish that the Town of

Southern Pines failed to train or supervise its law enforcement

officers. When a plaintiff has not suffered a constitutional

deprivation himself, there is no basis for municipal liability.

See Hoy ex rel. Brown v. Simpson, 182 F.3d 908, at *10 (4th Cir.

1999) (affirming a district court’s dismissal of the appellant’s

claim for municipal liability “[i]n light of the jury verdict,

herein affirmed, that none of the individual sheriff’s deputies

[were] deliberately indifferent to Brown’s serious medical

needs, and thus that he suffered no constitutional

deprivation”); City of Los Angeles v. Heller, 475 U.S. 796, 799

(1986) (per curiam) (“[N]either Monell . . . nor any other of

our cases authorizes the award of damages against a municipal

corporation based on the actions of one of its officers when in

fact the jury has concluded that the officer inflicted no

constitutional harm.”); Giancola v. W. Va. Dept. of Pub. Safety,

830 F.2d 547, 550 (4th Cir. 1987) (“If the officer’ actions were

in compliance with constitutional standards, there is no

liability on the part of . . . the employing entities.”).

Because this court has found that Plaintiff’s claims for

underlying constitutional violations fail, Plaintiff’s municipal

liability claim also fails as a matter of law.

Second, Plaintiff does not establish that the Town of

Southern Pines or Chief Temme had a policy or practice that

caused deprivation of constitutional rights, nor that it was

deliberately indifferent to constitutional violations. Plaintiff

does not point to any official SPPD or Town of Southern Pines

policy. Instead, Plaintiff alleges that City Defendants condoned

law enforcement misconduct in the form of false arrests and

failed to adequately train or supervise the SPPD. “Condonation

by municipal officials of widespread unconstitutional police

misconduct can constitute a policy or custom under section 1983”

if “responsible policymakers of the municipality had actual or

constructive knowledge of the misconduct, but failed, as a

matter of specific intent or deliberate indifference, to stop or

correct the practices.” Wright, 89 F.3d at *3. In the

alternative, if Plaintiff’s claim is based solely upon a failure

to implement necessary training or supervisory practices, “the

need for more or different training must be so obvious, and the

inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the city can

reasonably be said to have been deliberately indifferent to the

need.” See Sims v. Greenville Cnty., 211 F.3d 1265, at *2 (4th

Cir. 2000) (table decision).

However, Plaintiff has failed to present evidence

sufficient to create a genuine issue of material fact that the

Town of Southern Pines or Chief Temme displayed deliberate

indifference to individuals’ constitutional right not to be

falsely arrested. Viewing the evidence in the light most

favorable to Plaintiff as the nonmovant, Shaw, 13 F.3d at 798,

Plaintiff does not forecast sufficient evidence to show City

Defendants ignored constitutional violations. Plaintiff only

points to complaints that were unsubstantiated or isolated

incidents. The undisputed facts show that the SPPD investigated

Plaintiff’s 2013 complaint against Officer Perry. (Ex. J,

Campbell Decl. (Doc. 26-10) at 2–3.) The investigation cleared

Officer Perry of wrongdoing; that does not indicate that the

Town of Southern Pines or Chief Temme were deliberately

indifferent to Plaintiff’s constitutional rights. Similarly,

Arthur Darby’s complaint, filed in the Middle District of North

Carolina, was also dismissed for failure to state a claim. Order

and Recommendation, Darby v. Perry, No. 13-cv-185 (M.D.N.C. Mar.

20, 2013), Doc. 4, recommendation adopted, J. Darby v. Perry,

No. 13-cv-185 (M.D.N.C. Apr. 29, 2013), Doc. 6. Further, Martha

Dickerson’s and Tracy Williams’ affidavits show that both of

their complaints rested on the same SPPD investigation of

Dickerson’s son. (See Ex. 23, Dickerson Aff. (Doc. 32-23) at 1;

Ex. 38, Tracy Williams Aff. (Doc. 32-38) at 1.) Officers’

conduct during one investigation does not show a “‘persistent

and widespread practice’ such that [the Town of Southern Pines

or Chief Temme] could be held liable. . . . Isolated,

unprecedented incidents such as this one are insufficient to

create municipal liability.” See Doe v. Broderick, 225 F.3d 440,

456 (4th Cir. 2000) (affirming the lower court’s dismissal of a

county for a Monell claim because a single incident of an

unlawful search does not provide a basis for municipal

liability, under either a policy or practice theory or under a

failure to train theory). Thus, Plaintiff “has not ‘set forth

sufficient facts to establish that the supervising officials had

knowledge, actual or constructive, that [Town of Southern Pines]

police officers were engaged in conduct that posed a pervasive

and unreasonable risk of constitutional injury to citizens like

[Plaintiff].” Cilman v. Reeves, 452 F. App’x 263, 270 (4th Cir.

2011) (affirming the lower court’s grant of summary judgment in

favor of the town on a municipal liability claim for Fourth

Amendment violations). Accordingly, Plaintiff’s Monell claim

fails, and summary judgment will be granted in favor of City

Defendants as to this claim.

Vv. CONCLUSION

In sum, Plaintiff’s malicious prosecution claims fail

because there was probable cause for his arrest. Plaintiff’s

fabrication of evidence claim fails because his alleged

deprivation of liberty was pretrial detention, not a criminal

conviction. Plaintiff’s failure to intervene claim fails because

this court finds there were no underlying constitutional

violations. Finally, Plaintiff’s Monell claim fails, both because

this court finds that Plaintiff’s constitutional rights were not

violated and because Plaintiff has not created a genuine issue of

material fact that City Defendants were deliberately indifferent

to constitutional violations by the SPPD. Accordingly, Defendants

are entitled to summary judgment as a matter of law.

For the foregoing reasons,

IT IS THEREFORE ORDERED that Defendants’ Motion for Summary

Judgment, (Doc. 26), is GRANTED.

A Judgment dismissing this action will be filed herewith.

This the 3rd day of July, 2023.

Mi hin L. Us bes 1

United States District Jue

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