# Hyde-El v. Nethken

> District Court, W.D. North Carolina · January 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10257982

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** January 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:20-cv-00113-MR

MASON WHITE HYDE-EL, )
)
Plaintiff, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
)
ROGER VARGAS, )
)
Defendant. )
___________________________ )

THIS MATTER comes before the Court on Defendant’s Motion for
Summary Judgment. [Doc. 38].
I. PROCEDURAL BACKGROUND
Pro se Plaintiff Mason White Hyde-El (“Plaintiff”) is a federal prisoner
currently incarcerated at JESUP Federal Correctional Institution in Jesup,
Georgia. He brings this action pursuant to 42 U.S.C. § 1983 for violation of
his rights under the Fourth and Sixth Amendments. [Docs. 1, 10]. Plaintiff
claims that, in applying for and obtaining a warrant to arrest Plaintiff on state
drug charges, Defendant Vargas provided false information to the Magistrate
Judge and that Defendant lacked probable cause to arrest Plaintiff. [Doc. 10
at 1]. Plaintiff also claims that the arrest warrant Defendant Vargas obtained
was unsupported by oath or affirmation. [Id. at 2]. For injuries, Plaintiff
claims that he was “deprived of his freedom and liberties” by being placed
on a $25,000.00 secured bond and that he lost his house and car and

suffered emotional distress. [Doc. 10 at 2]. Plaintiff requests no particular
relief in this action. [See id.].
On initial review of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2)

and 1915A, the Court found that it appeared that Plaintiff’s Complaint was
barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), and Younger v.
Harris, 401 U.S. 37, 43-44 (1971), and ordered Plaintiff to amend his
Complaint to show that it was not barred. [Doc. 9]. Plaintiff timely amended

his Complaint, alleging that the charges for which he was allegedly
wrongfully arrested were voluntarily dismissed and that the relevant state
criminal proceeding is no longer pending. [Doc. 10 at 1]. The Court,

therefore, allowed Plaintiff’s Amended Complaint to pass initial review. [Doc.
11].
On May 7, 2021, Defendant Vargas moved for summary judgment of
Plaintiff’s Complaint pursuant to Rule 56 of the Federal Rules of Civil

Procedure. [Doc. 38]. Defendant argues that summary judgment should be
granted because Defendant did not violate Plaintiff’s constitutional rights;
Defendant is entitled to qualified immunity; and because Plaintiff failed to
exhaust administrative remedies before filing suit.1 In support of his
summary judgment motion, Defendant submitted a memorandum; a

Statement of Material Facts; the Magistrate’s Order setting the conditions of
Plaintiff’s bond in state court; various records from a federal drug prosecution
of Plaintiff in the Middle District of North Carolina; and the Affidavits of Roger

Vargas and Kevin Black. [Docs. 39, 40, 41-1 to 41-6].
On May 24, 2021, this Court entered an order in accordance with
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the
requirements for filing a response to the summary judgment motion and of

the manner in which evidence could be submitted to the Court. [Doc. 42].
Plaintiff timely responded to Defendant’s motion. [Doc. 44]. He submitted a
brief, his own Statement of Material Facts and Affidavit, documents from the

state criminal proceedings, and select discovery responses by Defendant.
[Id.]. In his Affidavit, Plaintiff also incorporated by reference his Complaint,
Amended Complaint and attached Brief, and Statement of Material Facts.
[Doc. 44 at 31]. Defendant replied to Plaintiff’s response, addressing various

1 While the record affirmatively shows that Plaintiff did not exhaust his administrative
remedies before filing this action, [Doc. 1 at 2; Doc. 5], Defendant failed forecast evidence
on this issue in a form acceptable here, [see Doc. 39 at 25]. Because dismissal based
on the failure to exhaust administrative remedies is without prejudice, the Court would
address the merits in this case in any event and, therefore, declines to further address
this issue. See Dillard v. Anderson, No. 2:13-CV-31-FDW, 2010 WL 9553022, at *2 n.2
(W.D.N.C. Sept. 6, 2010) (Whitney, C.J.). (“A dismissal for failure to exhaust
administrative remedies is without prejudice.”).
arguments made by Plaintiff. [Doc. 45]
The matter is now ripe for adjudication.

II. STANDARD OF REVIEW
Summary judgment shall be granted “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 factual dispute is
genuine “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). A fact is material only if it might affect the outcome of the suit under

governing law. Id.
The movant has the “initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving
party. The nonmoving party “must set forth specific facts showing that there
is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not

rely upon mere allegations or denials of allegations in his pleadings to defeat
a motion for summary judgment. Id. at 324. Rather, the nonmoving party
must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or
declarations, stipulations …, admissions, interrogatory answers, or other
materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Namely, the

nonmoving party must present sufficient evidence from which “a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248. To that end, only evidence admissible at trial may be considered by the
Court on summary judgment. Kennedy v. Joy Technologies, Inc., 269 Fed.

App’x 302, 308 (4th Cir. 2008) (citation omitted).
When ruling on a summary judgment motion, a court must view the
evidence and any inferences from the evidence in the light most favorable to

the nonmoving party. Anderson, 477 U.S. at 255. Facts, however, “must be
viewed in the light most favorable to the nonmoving party only if there is a
‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127
S.Ct. 1769, 1776 (2007). As the Supreme Court has emphasized,

“[w]hen the moving party has carried its burden under
Rule 56(c), the opponent must do more than simply
show there is some metaphysical doubt as to the
material facts …. Where the record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87, 106 S. Ct. 1348 (1986)
(footnote omitted). “[T]he mere existence of some
alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-28, 106 S. Ct.
2505 (1986). When opposing parties tell two
different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for
summary judgment.

Scott, 550 U.S. at 380, 127 S.Ct. at 1776.
III. FACTUAL BACKGROUND
The relevant forecast of evidence in the light most favorable to Plaintiff
is as follows.
Defendant Vargas has been a Deputy Sheriff for Iredell County, North
Carolina, since 2014. [Doc. 41-5 at ¶ 2: Vargas Aff.]. During the spring and
summer of 2019, Defendant Vargas was in charge of conducting an
investigation into Plaintiff’s drug activity. [Id. at ¶ 3]. During the same time
frame and unbeknownst to Defendant Vargas, Kevin Black, a Deputy Sheriff
for Rowan County, North Carolina, was also conducting an investigation into
Plaintiff’s drug activity.2 [Doc. 41-6 at ¶¶ 2-3: Black Aff.]. Black, who is
currently a Lieutenant, has 26 years of law enforcement experience,

2 Iredell County and Rowan County abut one another, but Iredell County is situated in the
Western District and Rowan County is situated in the Middle District.
including 23 years in narcotics enforcement. Lieutenant Black has been a
sworn Taskforce Officer (TFO) with the United States Department of

Homeland Security since 2006. [Id. at ¶ 2].
Lieutenant Black learned Plaintiff’s identity from TFO D. Barnes of the
Alexander County Sheriff’s Office. TFO Barnes arrested an individual on

drug charges who told Barnes that he, the arrestee, regularly brought drugs
from Plaintiff. [Id. at ¶ 4]. On May 7, 2019, Lieutenant Black supervised the
first of five drug buys from the Plaintiff by undercover officers with the Rowan
County Sheriff’s Office (RCSO) and its confidential informants (CIs). [Id. at

¶¶ 6-10]. The last of these buys occurred on July 12, 2019, the day Plaintiff
was arrested. [Id. at ¶ 10].
On July 1, 2019, the Iredell County Sheriff’s Office, under Defendant

Vargas’ direction, coordinated a drug enforcement operation in Statesville,
North Carolina, in which Lieutenant G. B. Toney,3 another Deputy Sheriff,
along with a CI, purchased heroin from Plaintiff. [Doc. 41-5 at ¶ 4]. On
Plaintiff’s request, Lieutenant Toney met Plaintiff in a Sheetz gas station’s

bathroom. [Id. at ¶¶ 4, 5]. Lieutenant Toney gave Plaintiff $200 in cash in
exchange for a small plastic bag of a substance later confirmed to be heroin.

3 The record inconsistently refers to Toney as Lieutenant and Sergeant. [See Doc. 41-5].
The Court adopts the Lieutenant designation for purposes of this Order only.
[Id. at ¶ 5; id. at 6]. Law enforcement conducted physical and technical
surveillance throughout the operation. [Id. at ¶ 5]. After the transaction,

Sergeant Toney met with Defendant Vargas to turn over the heroin sold by
Plaintiff. [Id.].
During course of the investigation, Defendant Vargas spoke with

Lieutenant Black. [Id. at ¶ 6]. Lieutenant Black informed Defendant Vargas
of the RCSO investigation of the Plaintiff’s drug activity. [Id.]. Thereafter,
Defendant Vargas decided to discontinue his investigation and allow the
RCSO to pursue its investigation. [Id.]. After Plaintiff’s arrest by the RCSO,

he was taken to the Rowan County Magistrate’s Office. [Doc. 41-6 at ¶ 12].
There, Lieutenant Black gave a sworn, oral statement of facts regarding his
investigation of Plaintiff to the magistrate. [Id.]. After hearing Lieutenant

Black’s statement, the magistrate found probable cause to charge Plaintiff
with trafficking heroin, conspiracy to traffic heroin, maintaining a dwelling for
the purposes of drug activity, and possession of a firearm by a felon. Plaintiff
was placed under a $500,000 bond and held at the Rowan County Detention

Center. [Id.].
On August 21, 2019, Defendant Vargas appeared before Iredell
County Magistrate M. C. Nethken and gave sworn, oral testimony regarding

the July 1, 2019 drug transaction between Plaintiff and Lieutenant Toney.
[Doc. 41-5 at ¶ 7; Doc. 44 at 32]. After hearing Defendant Vargas’ statement,
the magistrate found probable cause to charge Plaintiff with possession with

intent to sell and deliver a Schedule I controlled substance and with the
unlawful sale of a Schedule I controlled substance on July 1, 2019. [Doc.
41-5 at ¶ 7]. On August 28, 2019, a Rowan County Deputy Sheriff served

Plaintiff with the arrest warrant and took Plaintiff before a magistrate. Plaintiff
was placed under a $25,000.00 secured bond. [Id. at ¶ 8].
On September 9, 2019, the RCSO provided Plaintiff’s case summary
to the United States Attorney’s Office for prosecution. On October 28, 2019,

Plaintiff was indicted in the United States District Court for the Middle District
of North Carolina on eight counts related to his possession and sale of
heroin. [Doc. 41-6 at ¶ 14]. The Rowan County charges based on the same

illegal drug transactions were dismissed as duplicative of the federal
charges. [Id.]. In or around November 2019, the Iredell County District
Attorney’s Office agreed to dismiss the charges against Plaintiff pending
there since Plaintiff had been indicted on similar charges in federal court.

[Doc. 41-5 at ¶ 9; Doc. 45-1 at ¶ 3].
On February 18, 2020, after losing a suppression motion, Plaintiff
decided to plead guilty to the federal charges. [Doc. 41-6 at ¶ 15]. He

pleaded guilty to Count One of the Indictment for conspiracy to distribute
heroin in exchange for the dismissal of the remaining counts. [Doc. 41-6 at
¶ 16; see Criminal Case No. 1:19-cr-00548-NCT-1 (“CR”), 2/18/2020 Docket

Entry]. Plaintiff was sentenced to a term of 70 months’ imprisonment and
final judgment was entered on August 21, 2020. [CR Doc. 92, Doc. 41-6 at
¶ 16].

IV. DISCUSSION
A. Fourth Amendment
Plaintiff claims that his Fourth Amendment rights were violated
because the Iredell County arrest warrant Defendant Vargas applied for was
not supported by “Oath or Affirmation” because there was no written

complaint or affidavit or recorded sworn testimony showing probable cause
to arrest Plaintiff. Plaintiff further claims that Defendant Vargas provided
false information to the magistrate because Plaintiff did not sell drugs to

Sergeant Toney.
The Fourth Amendment protects “[t]he right of the people to be secure
in their persons … against unreasonable searches and seizures” and
provides that “no Warrants shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.” U.S. Const. amend. IV; see
generally Graham v. Connor, 490 U.S. 386, 396 (1989). Because an arrest
amounts to a Fourth Amendment seizure, probable cause is necessary for
an arrest to be lawful. See Henderson v. Simms, 223 F.3d 267, 272 (4th Cir.

2000); see also Draper v. United States, 358 U.S. 307, 310-11, 79 S.Ct. 329
(1959).
Probable cause is determined by a “totality-of-the-circumstances”

approach. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317 (1983).
“While probable cause requires more than bare suspicion, it requires less
than that evidence necessary to convict.” United States v. Gray, 137 F.3d
765, 769 (4th Cir. 1998) (internal quotation marks omitted). “It is an objective

standard of probability that reasonable and prudent persons apply in
everyday life.” Id. “A court should only consider the information the officers
had at the time they sought the warrant.” Smith v. Munday, 848 F.3d 248,

253 (4th Cir. 2017) (citation omitted).
“It is settled law in this Circuit that the ‘Fourth Amendment does not
require that the basis for probable cause be established in a written affidavit;
it merely requires that the information provided the issuing magistrate be

supported by “Oath or affirmation.”’” Antonio v. Moore, 174 Fed. App’x 131,
136 (4th Cir. 2006) (quoting United States v. Clyburn, 24 F.3d 613, 617 (4th
Cir. 1994) (quoting U.S. Const. amend. IV)). Moreover, North Carolina law
parrots this standard, plainly allowing an arrest warrant to issue on oral oath
or affirmation. North Carolina General Statute § 15A-304(d) provides:

A judicial official may issue a warrant for arrest only
when he is supplied with sufficient information,
supported for oath or affirmation, to make an
independent judgment that there is probable cause
to believe that a crime has been committed and that
the person to be arrested committed it. The
information must be shown by one or both of the
following:

(1) Affidavit.

(2) Oral testimony under oath or affirmation before
the issuing official.

N.C.G.S. § 15A-304(d).
Accordingly, Plaintiff’s claim that his Fourth Amendment rights were
violated because Defendant Vargas’ statement was not written or recorded
easily fails. The Fourth Amendment is satisfied by oral sworn testimony such
as that given by Defendant Vargas.4 Plaintiff’s claim based on allegedly false
information provided by Defendant Vargas to the magistrate also fails. The
forecast of evidence does not show that Defendant Vargas had any reason
to doubt the information provided by Lieutenant Toney. Lieutenant Toney,
under constant surveillance by other law enforcement, reportedly engaged

4 There is also, therefore, no right, contrary to Plaintiff’s contentions, that he be provided
an affidavit, complaint, or recorded testimony from a probable cause hearing so that he
might confront or cross-examine Defendant Vargas’ statement.
in a hand-to-hand drug transaction with Plaintiff in a gas station bathroom in
the presence of a CI. The drugs obtained from Plaintiff during this

transaction were tested shown to be heroin. The forecast of evidence shows
only that Defendant Vargas reported the information from the drug
enforcement operation to the magistrate who determined there was probable

cause for an arrest. Plaintiff, therefore, has failed to show Defendant Vargas
knew the information Vargas reported was false and, therefore, failed to
show that Defendant Vargas violated Plaintiff’s rights. Because there is no
issue for the jury on Plaintiff’s Fourth Amendment claim, the Court will grant

Defendant’s motion for summary judgment on this claim.
B. Sixth Amendment
Plaintiff claims that his Sixth Amendment rights were violated by

Defendant Vargas’ provision of false information to the magistrate, the arrest
warrant being unsupported by “Oath or affirmation,” and the lack of probable
cause for Plaintiff’s arrest. [Doc. 10 at 2]. Plaintiff further claims that these
circumstances left him “without any means to confront/cross-examine Roger

Vargas’ accusations.” [Doc. 10-1 at 3].
Plaintiff misunderstands the protections of the Sixth Amendment. It
provides:

In all criminal prosecutions, the accused shall enjoy
the right … to be informed of the nature and cause of
the accusation; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.

U.S. Const. amend. VI.
The Sixth Amendment does not apply to probable cause hearings. A
potential arrestee has no right to counsel or to confront witnesses in a
magistrate’s determination of whether there is probable cause to arrest him
in the first place. Rather, “[t]he right to confrontation is basically a trial right.
It includes both the opportunity to cross-examine and the occasion for the
jury to weigh the demeanor of the witness.” Barber v. Page. 390 U.S. 719,
725, 88 S. Ct. 1318, 1322 (1968).

In sum, there is no forecast of evidence of any violation of Plaintiff’s
Sixth Amendment rights. Because there too lies no issue for trial on this
claim, it will also be dismissed.
C. Qualified Immunity

“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) (en banc). “To determine whether an officer is entitled to
qualified immunity, the court must examine (1) whether the plaintiff has
demonstrated that the officer violated a constitutional right and (2) whether
that right was clearly established at the time of the alleged violation.” E.W.
ex rel. T.W. v. Dolgos, 884 F.3d 172, 178 (4th Cir. 2018) (internal quotation

marks omitted). The doctrine of qualified immunity “gives government
officials breathing room to make reasonable but mistaken judgments and
protects all but the plainly incompetent or those who knowingly violate the

law.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (internal quotation
marks omitted).
Because Plaintiff has not forecasted evidence that Defendant Vargas
violated a constitutional right, Defendant Vargas is entitled to qualified

immunity on Plaintiff’s individual capacity claims against him. As such, the
Court grants summary judgment on this ground as well.
D. Official Capacity Claims

To the extent Plaintiff intended to sue Defendant Vargas in his official
capacity, the Court addresses the issue. Suits against an officer in his official
capacity “generally represent only another way of pleading an action against
an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159,

165, 105 S. Ct. 3099 (1985) (1985) (quoting Monell v Dep’t of Soc. Servs. Of
the City of New York, 436 U.S. 658,690 n. 55, 98 S. Ct. 2018 (1978)). The
Office of Sheriff is not liable under § 1983 for an employee’s acts “unless

action pursuant to official municipal policy of some nature caused [the]
constitutional tort.” Collins v. City of Harker Heights, 503 U.S. 115, 120-21,
112 S. Ct. 1061, 1066 (quoting Monell, 436 U.S. at 691, 98 S. Ct. at 2036).

That is, “[f]or a governmental entity to be liable under section 1983, the
official policy must be the moving force of the constitutional violation.” Moore
v. City of Creedmoor, 345 N.C. 356, 366, 481 S.E.2d 14, 21 (1997) (internal

quotation marks and citations omitted). “Thus, the entity’s ‘policy or custom’
must have played a part in the violation of federal law.” Id. (quoting Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978)).
Here, there is no forecast of evidence that the alleged constitutional

violations were caused by an official custom or policy of the Office of Sheriff.
Rather, Plaintiff’s forecast of evidence focuses on the acts of Defendant
Vargas only. As such, to the extent Plaintiff sought to sue Defendant Vargas

in his official capacity, these claims are dismissed.
V. CONCLUSION
For all the foregoing reasons, Defendant’s motion for summary
judgment is granted.

O R D E R

IT IS, THEREFORE, ORDERED that Defendant’s Motion for Summary
Judgment [Doc. 38] is GRANTED and this action is DISMISSED with
prejudice.
The Clerk is respectfully instructed to terminate this action.
IT IS SO ORDERED.

Signed: January 19, 2022

Martiff Reidinger ey
Chief United States District Judge wally

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10257982. Public record. Not legal advice.