Craft v. Gills

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

DAVID CRAFT,

Plaintiff,

v. CIVIL ACTION NO. 1:23-00098

JOHN D. GILLS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is defendants’ motion for summary

judgment. (ECF No. 33). For the reasons explained below, the

motion is GRANTED in part and DENIED in part.

I. Background

This case arises from an investigation by the West Virginia

Division of Natural Resources (“DNR”) into alleged unlawful

hunting activities by plaintiff David Craft. (See Compl. at ¶¶

1-4, ECF No. 1). Craft brings claims under 42 U.S.C. § 1983

against defendant DNR Officers, alleging that they violated the

Fourth Amendment to the United States Constitution by

prosecuting him without probable cause and seizing deer antlers

from him without a warrant. (See id. at ¶¶ 35, 44).

On November 3, 2020, Craft killed a buck in McDowell

County, West Virginia. (See Craft Dep. Tr. at 11:21-13:5, ECF

No. 33-10). He was a North Carolina resident but possessed a

valid West Virginia hunting license. (See DNR Officer John

Gills Dep. Tr. at ¶¶ 30:5-14, ECF No. 33-8). He killed a second

buck later that month on November 23. (See Craft Dep. Tr. at

28:6-7, ECF No. 33-10). He says he killed this one near his

hometown of Statesville, North Carlina, after leaving a bear

hunting trip in McDowell County at approximately 5:00 a.m. that

day. (See id. at 31:5-12). He checked this deer into North

Carolina’s wildlife management database the next day. (See ECF

No. 33-5 at 5).

Defendant DNR Officer John Gills believes both deer were

killed illegally in West Virginia. (See Gills Dep. Tr. at

20:10-17, ECF No. 33-8). He says Craft killed them on private

property in McDowell County, without the permission of the

landowner or lessee of the property, the Wolf Pen Hunt Club.

(Id. at 23:8-10). This would violate West Virginia Code § 20-2-

7(a) (2010), which makes it a criminal offense to hunt on

private land without the permission of the landowner or tenant

of the landowner. Gills says Craft killed both deer with a

crossbow and did not have a license permitting the use of a

crossbow, in violation of West Virginia Code § 20-2-42w (2020).

Additionally, Gills says that Craft killed the second buck in

McDowell County, despite the first buck satisfying his season

“bag limit” for that county, in violation of West Virginia Code

§ 20-1-17(b)(7) (2020) and West Virginia Code of State Rules §

58-50-3.

Gills learned of these alleged violations on December 8,

2020, when his sergeant relayed a complaint that he had received

from an informant who claimed that he learned from Craft’s

cousin, Roger Craft, that Craft killed the deer on the Wolf Pen

Hunt Club’s property with a crossbow. (See Gills Dep. Tr. at

29:22-30:1, 103:12-23, ECF No. 33-8). Gills spoke with the

property manager for the Wolf Pen Hunt Club, who informed him

that he had seen two people hunting on the property without

permission. (See id. at 21:14-17, 24:10-18). The property

manager told Gills that he posted a note on a log advising them

not to hunt on the property. (See id. at 104:17-105:9).

The property manager showed Gills trail-camera photos of

two deer he believed were poached from the property. (See id.

37:18-38:1). One of the deer had a distinctive “kicker” feature

on its antlers. (See id. at 130:5-7). Gills visited the site

within the Wolf Pen Hunt Club property where members said the

deer were killed, and Gills found evidence that a deer had been

killed there. (See id. at 33:3-34:13). Next he contacted North

Carolina DNR officers who informed him that Craft had checked a

deer into North Carolina’s wildlife management system around the

time he had allegedly killed the second buck in McDowell County,

and Gills believed the deer matched the description of the one

the hunt club members showed him. (See id. at 41:4-13). Gills

then contacted the person who rented a home to Craft when he

hunted, confirming that Craft was in McDowell County on the

alleged dates. (See id. at 39:12-40:3).

Based on the information he had gathered to this point,

Gills made an official request for assistance to the North

Carolina DNR, and on February 8, 2021, he traveled to

Statesville with defendant Andy Damewood, a fellow West Virginia

DNR officer, to question Craft. (See id. at 46:23-47:1-3).

Gills had another DNR officer, G.W. Wood, remain in McDowell

County to execute a search warrant at the home of Craft’s

cousin, whom the informant said helped Craft process the

illegally killed deer. (See id. at 44:1-24, 47:4-21). Gills

planned to have the search warrant executed at the time he

questioned Craft to prevent him or his cousin from alerting each

other of the investigation. (See id. at 47:17-48:14).

When Gills and Damewood arrived in Statesville, they met

with North Carolina DNR officers and briefed them about the

case. (See id. at 54:1-55:5). Gills and Damewood went to

Craft’s house with the North Carolina officers and spoke to him

in his driveway. (See id. at 58:4-60:6). Craft showed Gills a

picture of the deer he says he killed in North Carolina, and

Gills says it was the same deer shown in the Wolf Pen Hunt Club

pictures. (See id. at 61:6-11).

While the officers questioned Craft in North Carolina, Wood

executed the search warrant in McDowell County. (See id. 68:5-

7). Wood relayed to Gills the information he gathered from

Craft’s cousin. (See id. at 68:8-12). This included admissions

in a recorded interview and text messages recovered from his

phone. (See id. at 75:24-76:1-3, 81:12-17).

Craft’s cousin told Wood that Craft killed two bucks in

McDowell County in November 2020 on a lease he thought he had

permission to hunt on. (See ECF No. 33-5 at 63-64). He said

that Craft probably used a crossbow. (See id. at 62-63).

Craft’s cousin also told Wood that he helped Craft drag the

second deer out of the woods. (See id. at 64).

Text messages recovered on Craft’s cousin’s cellphone were

also revealing. Craft texted the following to his cousin on the

morning of November 21:

Gonna have to deal with some bullshit when I

get out of the woods this morning[.] [A]

hunting club le[f]t a log with posted signs

and a note telling me to get my stuff out by

today and the[y’re] going to lock the gate

going up the mountain[.] . . . They left a

phone number. Wolf p[e]n hunting club. I’m

gonna tell them they can get fucked[.]

(ECF No. 33-2 at 15). Craft later texted his cousin and said

“they can’t legally make me leave [since] it [is] gas land and

that remains public right[,]” to which his cousin responded,

“[j]ust watch what you doing because they know the game wardens

and shit.” (Id. at 18). Two days later, on November 23 at

10:30 a.m., Craft sent his cousin a picture of a buck that he

killed. (See ECF No. 33-3 at 11). When his cousin asked if he

was going to keep hunting, Craft replied “Heck no I got to get

out of here[.]” (See id. at 12). The cousin suggested that

Craft give the deer meat away to “[k]eep [Craft] from hauling it

back and shit . . . .” (Id. at 13).

Before Gills left Craft’s home in North Carolina, Gills

issued Craft citations for hunting on private property without

the permission of the Wolf Pen Hunt Club, in violation of West

Virginia Code § 20-2-7(a), (ECF No. 33-5 at 68); hunting with a

crossbow without a license, in violation of West Virginia Code §

20-2-42w, (ECF No. 33-5 at 69); and exceeding his bag limit by

killing two deer in McDowell County, in violation of West

Virginia Code of State Rules § 58-50-3, (ECF No. 33-5 at 71).

Gills issued two other citations for related infractions. (See

id. at 67, 70).

Gills returned to West Virginia with two sets of deer

antlers and “capes” that Craft left with a taxidermist near his

home. (See Gills Dep. Tr. at 83:22-24, ECF No. 33-8). North

Carolina officers had seized the antlers and capes without a

warrant after Gills suggested to them that the antlers could be

DNA tested at West Virginia University to determine their state

of origin. (See id. at 71:18-73:17).

Gills sent the antlers off for DNA testing. While the

results were pending, the McDowell County prosecutor requested

continuances of the criminal proceedings, and Craft says he

appeared for hearings in McDowell County. (See Pl.’s Response

at 6, ECF No. 37). On April 14, 2022, the results for one set

of antlers revealed that the deer came from West Virginia; the

results for the second set of antlers were inconclusive. (See

Gills Dep. Tr. at 79:9-80:13, ECF No. 33-8). Gills and the

McDowell County prosecutor agreed to dismiss the charges. (See

ECF No. 37-4). Gills returned the antlers to Craft after more

than a year in the state’s possession. (See Pl.’s Response at

6-7, ECF No. 37).

In their motion for summary judgment, defendants argue that

Craft was never seized, that they had probable cause to charge

him with the hunting violations, and that they are not liable

for the warrantless seizure of the antlers since North Carolina

officer took them from the taxidermist.

II. Legal Standard

Summary judgment is appropriate “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 party that moves for summary judgment bears

the initial burden of demonstrating that no genuine issue of

material fact exists. See Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). “A fact is ‘material’ if proof of its

existence or non-existence would affect disposition of the case

under applicable law. An issue of material fact is ‘genuine’ if

the evidence offered is such that a reasonable jury might return

a verdict for the non-movant.” Sedar v. Reston Town Ctr. Prop.,

LLC, 988 F.3d 756, 761 (4th Cir. 2021) (quoting Wai Man Tom v.

Hosp. Ventures LLC, 980 F.3d 1027, 1037 (4th Cir. 2020)).

Once the moving party establishes this initial burden, “the

nonmoving party must then go beyond the pleadings and affidavits

and show that there are ‘specific facts showing that there is a

genuine issue for trial.’” Shaw v. Foreman, 59 F.4th 121, 129

(4th Cir. 2023) (quoting Celotex, 477 U.S. at 324). To show a

genuine issue for trial, the nonmoving party must present more

than “[t]he mere existence of a scintilla of evidence[.]” Id.

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986)). This means “conclusory allegations or denials, without

more, are insufficient to preclude granting [a] summary judgment

motion.” Id. (quoting Wai Man Tom, 980 F.3d at 1037). “[T]he

court need not consider ‘unsupported assertions’ or ‘self-

serving opinions without objective corroboration.’” Mcdougald

v. Kersey, 1:20CV666, 2022 WL 17578248, at *2 (S.D.W. Va. Aug.

16 2022) (quoting Evans v. Techs. Applications & Serv. Co., 80

F.3d 954, 962 (4th Cir. 1996)).

II. Discussion

As an initial matter, Craft agrees to voluntarily dismiss

defendant Andy Damewood from this action. (See Pl.’s Response

at 14, ECF No. 37). Therefore, the court will address only the

claims against Gills.

Generally, in cases brought against a law-enforcement

officer under 42 U.S.C. § 1983, courts must apply the demanding

qualified immunity standard. This requires a plaintiff to not

only prove the violation of his or her constitutional rights,

but also that those rights were clearly established at the time

of the violation. See Pearson v. Callahan, 555 U.S. 223, 232

(2009). However, in this case, Gills only briefly mentions

qualified immunity in the final paragraph of his twenty-four-

page brief and does not address the second prong of the

qualified immunity analysis. (See Defs.’ Mem. Supp. Summ. J. at

23-24, ECF No. 34).

This passing reference to qualified immunity is

insufficient. “The Fourth Circuit has stated that the defense

of qualified immunity should be ‘raised . . . distinct[ly] from

the question of whether a constitutional violation occurred.’”

Cantrell v. Frame, No. 2:18-cv-01106, 2019 WL 1234335, at *2

(S.D.W. Va. Mar. 18, 2019) (quoting Buffington v. Baltimore

Cty., Md., 913 F.2d 113, 122 (4th Cir. 1990)). Courts are not

required to address the clearly established prong when a “brief

mentions qualified immunity for the officer-defendants, but

hinges the argument wholly on the lack of a constitutional

violation . . . .” Buffington, 913 F.2d at 122. For this

reason, the court will consider only whether Gills violated

Craft’s constitutional rights, not whether Gills is entitled to

qualified immunity.

Craft asserts two Fourth Amendment claims: malicious

prosecution and unlawful seizure of evidence.

A. Malicious Prosecution

Technically, “there is no such thing as a ‘§ 1983 malicious

prosecution’ claim.” Lambert v. Williams, 223 F.3d 257, 262

(4th Cir. 2000). “What has been termed a ‘malicious

prosecution’ claim in other cases ‘is simply a claim founded on

a Fourth Amendment seizure that incorporates elements of the

analogous common law tort of malicious prosecution . . . .”

Butler v. Genda, No. 505CV00039, 2006 WL 314541, *3 (W.D. Va.

Feb. 9, 2006). The elements of the claim are well established:

“To state a constitutional claim for malicious prosecution, ‘a

plaintiff must allege 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.’” Adams v. Cty. of Lexington, No. 8:20-4296-

MGL-PJG, 2022 WL 21747956, at *4 (D.S.C. May 19, 2022) (quoting

Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012)). “The

constitutional violation alleged in such a suit is a type of

unreasonable seizure—an arrest and detention of a person based

on a criminal charge lacking probable cause.” Chiaverini v.

City of Napoleon, 602 U.S. 556, 562 (2024).

Gills argues that Craft was not seized and that,

regardless, probable cause supported the charges against him.

1. Seizure

To implicate the Fourth Amendment, a plaintiff must show

that he or she was seized. See Vansandt v. Passmore, No. 15–CV–

620–JED–FHM, 2016 WL 5107020, at *4 (N.D. Okla. Sept. 20, 2016)

(citing Albright v. Oliver, 510 U.S. 266, 271 (1994)). For that

reason, “[a] groundless charging decision may abuse the criminal

process, but it does not, in and of itself, violate the Fourth

Amendment absent a significant restriction on liberty.” Id.

(quoting Becker v. Kroll, 494 F.3d 904, 914 (10th Cir. 2007)).

The seizure must be instituted “pursuant to legal process.”

Warren v. Montgomery Cty., No. PJM 09–2510, 2012 WL 3779165, at

*4 (D. Md. Aug. 30, 2012). “In this context, legal process

ordinarily takes ‘the form of an arrest warrant (in which case

the arrest would constitute the seizure) or a subsequent

charging document (in which case the sum of post-arraignment

deprivations would comprise the seizure).’” Id. (quoting Nieves

v. McSweeney, 241 F.3d 46, 54 (1st Cir. 2001)). “[T]he issuance

of a citation, even under threat of jail if not accepted, does

not rise to the level of a Fourth Amendment seizure . . . .”

Martinez v. Carr, 479 F.3d 1292, 1299 (10th Cir. 2007).

In this case, Craft was not arrested or detained, and the

issuance of citations in his driveway was not a seizure.

Therefore, he must show “some post-arraignment deprivation of

liberty, ‘caused by the application of legal process,’ that

rises to the level of a constitutional violation.” Id.

(quoting Nieves, 241 F.3d at 54). This requires him to

establish “separate and distinct liberty deprivations as a

result of the criminal charges brought against h[im], other than

being obliged to appear in court, experiencing stress, or

feeling humiliated by the process.” Id. (citing Harrington v.

City of Nashua, 610 F.3d 24, 32 (1st Cir. 2010)). Such

deprivations of liberty include being detained after initiation

of the criminal charges or having “onerous travel restrictions”

imposed as bond conditions. See id. (citing Gallo v. City of

Philadelphia, 161 F.3d 217, 222–24 (3d Cir. 1998)).

Craft does not show how he was seized because of the legal

process. (See Pl.’s Resp. at 10-11, ECF No. 37). He implies

that the issuance of the citations and the court proceedings

against him are enough to establish a Fourth Amendment seizure.

(See id.). This is not enough. He offers no evidence that he

was detained, that he posted bond, or that bond conditions

imposed onerous travel restrictions on him. (See id.).

Accordingly, he has failed to establish a deprivation of liberty

amounting to a Fourth Amendment seizure.

2. Probable Cause

Even if Craft was seized when required to appear in court,

the seizure was supported by probable cause.

In addition to showing he was seized, Craft must establish

“the wrongful initiation of charges without probable cause . . .

.” Chiaverini, 602 U.S. at 562 (quoting Thompson v. Clark, 596

U.S. 36, 43 (2022)). “Probable cause requires only ‘the kind of

fair probability on which reasonable and prudent people, not

legal technicians,’ would rely.” United States v. Bolling, No.

2:21-00087, 2023 WL 5616188, at *8 (S.D.W. Va. Aug. 30, 2023)

(quoting United States v. Jones, 952 F.3d 153, 158 (4th Cir.

2020)). Probable cause “requires only a probability or

substantial chance of criminal activity, not an actual showing

of such activity.” Brown v. Lott, No. 21-6928, 2022 WL 2093849,

at *1 (4th Cir. June 10, 2022) (quoting Illinois v. Gates, 462

U.S. 213, 243 n.13 (1983)).

To satisfy this standard, a suspect must merely engage in

conduct that warrants suspicion. See United States v. Orozco,

41 F.4th 403, 407 (4th Cir. 2022) (quoting United States v.

Gondres-Medrano, 3 F.4th 708, 713 n.1 (4th Cir. 2021)). For

this reason, probable cause is “not a high bar.” United States

v. Blakeney, 949 F.3d 851, 859 (4th Cir. 2020). The “totality

of circumstances” and “common-sense conclusions about human

behavior” inform the analysis. United States v. Jones, 952 F.3d

153, 158 (4th Cir. 2020).

The analysis is generally straightforward. “Stripped to

its essence, the question to be answered is whether an

objectively reasonable police officer, placed in the

circumstances, had a reasonable ground for belief of guilt that

was particularized with respect to the person to be . . .

seized.” Harrington-Wall v. City of Monroe, No. 20-2132, 2022

WL 670874, at *2 (4th Cir. Mar. 7, 2022) (per curiam) (quoting

United States v. Humphries, 372 F.3d 653, 657–58 (4th Cir.

2004)). Of note in this case, “[a] combination of tips from an

informant and first-hand corroborative observation of suspicious

activity will provide probable cause.” Carter v. Luciano, No.

2:22-cv-00230, 2023 WL 3956201, at *4 (S.D.W. Va. June 12, 2023)

(quoting United States v. McCraw, 920 F.2d 224, 227 (4th Cir.

1990)). When there is no genuine dispute of historical fact,

“the court determines as a matter of law whether the facts

amount to probable cause.” R.M.B. v. Bedford Cty. Sch. Bd., 169

F. Supp. 3d 647, 654 (W.D. Va. 2016) (cleaned up) (quoting

Caldwell v. Green, 451 F. Supp. 2d 811, 818 (W.D. Va. 2006)).

Probable cause existed to believe that Craft committed the

charged violations. After the informant alerted the DNR of

Craft’s alleged violations, Gills pursued the tip and found

corroborating evidence. He visited the Wolf Pen Hunt Club and

found evidence that a deer had been killed where Craft allegedly

hunted, which corroborated the statements of the informant and

members of the hunt club. Gills confirmed that Craft had been

in McDowell County on the alleged dates and that Craft had

checked a buck into the North Carolina database the day after he

allegedly killed the second buck in McDowell County. This

evidence alone supported a search warrant for Craft’s cousin’s

house in McDowell County. Yet, the most incriminating evidence

would come from the execution of that warrant.

Craft’s cousin told Wood that Craft killed two deer in

McDowell County that hunting season, indicated that the deer

were killed on the property leased by the Wolf Pen Hunt Club,

and stated that Craft probably used a crossbow. Craft’s cousin

also admitted that he helped Craft drag the second deer out of

the woods. He made these statements while law enforcement

officers executed a search warrant at his home for his alleged

involvement in the criminal activity. Therefore, the statements

are entitled to heightened credibility and alone support a

finding of probable cause: “Admissions of crime, like

admissions against proprietary interests, carry their own

indicia of credibility—sufficient at least to support a finding

of probable cause . . . .” United States v. Sweeney, No.

1:08CR77, 2009 WL 441442, at *3 (N.D.W. Va. Feb. 20, 2009)

(quoting United States v. Harris, 403 U.S. 573, 583 (1971)).

The text messages recovered on Craft’s cousin’s phone also

support a finding of probable cause. Craft acknowledged receipt

of the Wolf Pen Hunt Club’s letter, which corroborated the

information DNR officers had received from the informant,

members of the hunt club, and Craft’s cousin. The messages also

revealed Craft’s and his cousin’s guilty consciences. Craft’s

cousin advised Craft to look out for DNR officers after Craft

informed him of the Wolf Pen Hunt Club’s letter. His cousin

also suggested a way for Craft to avoid hauling the meat back

after he learned Craft killed the second buck. Similarly, when

asked whether he was going to keep hunting, Craft expressed his

need to “get out of here.” This would raise the suspicion of

reasonable officers under the circumstances. See District of

Columbia v. Wesby, 583 U.S. 48, 59 (2018) (considering evidence

of guilty conscience as “‘suspicious behavior’ that factors into

the totality of the circumstances.”). Officers also saw a

picture of the dead buck that Craft sent his cousin at 10:30

a.m. on November 23, which is suspicious given the undisputed

evidence that Craft was in McDowell County that morning.

Craft and his cousin have tried to walk back his

incriminating statements and their text messages. Craft, in his

deposition, admitted that his cousin told Officer Wood that

Craft killed the second buck in McDowell County. (See Craft

Dep. Tr. at 81:1-91:12, ECF No. 33-10). However, Craft

testified that he jokingly misled his cousin into believing that

he killed the buck there. (See id.). This does not matter.

“[W]hether the substance of the information known to the officer

is actually true is . . . irrelevant; all the court need decide

is ‘whether the officer had probable cause to believe’ that the

person committed a crime.” Benn v. Kissane, 510 F. App’x 34,

36-37 (2d Cir. 2013) (quoting Maryland v. Pringle, 540 U.S. 366,

370 (2003)). It is undisputed that Craft’s cousin told Wood

that Craft killed the second buck in McDowell County. This

established probable cause that Craft exceeded his bag limit for

the county.

Craft’s cousin changed his statements in his deposition.

He testified that he does not recall how many deer Craft killed

in McDowell County that hunting season and that the deer he

helped Craft with was not on the Wolf Pen Hunt Club’s lease.

(See Roger Craft Dep. Tr. at 15:9-22, ECF No. 33-11). This

changed statement does not affect the probable cause analysis,

either. The court is concerned only with what Gills knew at the

time of the alleged seizure. There is no evidence that Craft’s

cousin recanted his statements before this lawsuit, and even if

he had, it would be immaterial to the probable cause

determination because “[p]olice officers are constantly faced

with reluctant witnesses and recanted confessions. Yet they are

not required ‘to use the rules for summary judgment and draw

inferences in favor of the suspects.’” Coleman v. City of

Peoria, 925 F.3d 336, 351 (7th Cir. 2019) (quoting Bridewell v.

Eberle, 730 F.3d 672, 676 (7th Cir. 2013)). Therefore, Craft’s

cousin’s statements established probable cause.

Craft argues that the text messages should not inform the

probable cause analysis because they “were not utilized as

evidence in the underlying criminal prosecution, nor were they

even disclosed in discovery during the criminal prosecution.”

(Pl.’s Resp. at 11, ECF No. 37). The court rejects this

argument.

It is immaterial whether the text messages were used in the

prosecution. Probable cause is to be “considered in light of

all information available to [officers] at the time of the

[seizure] . . . .” Mason v. City of Indianapolis, No. 1:06-cv-

258-RLY-TAB, 2007 WL 2700193, at *4 (S.D. Ind. Sept. 11, 2007)

(quoting Edwards v. Cabrera, 58 F.3d 290, 292 (7th Cir. 1995)).

It is undisputed that the officers had the information while

charges pended against Craft. Gills produced the text messages

in this case. Craft admits that DNR officers “went all through”

his cousin’s phone. (Craft Dep. Tr. at 68:10, ECF No. 33-10).

His cousin testified to the same thing. He says that when

officers executed the search warrant at his home, “[t]he guy had

my phone. I don’t know if he took text messages or what. They

said they had the subpoena or a search warrant for my phones and

my house and my kids’ phones and everything.” (Roger Craft Dep.

Tr. at 10:11-15, ECF No. 33-11). Therefore, the text messages

are included in the totality of the circumstances available to

the officers at the time of the alleged seizure.

Craft also argues that the text messages were not “obtained

by [Gills], allegedly, until after he had already cited

plaintiff in North Carolina.” (Pl.’s Resp. at 11, ECF No. 37).

Craft offers no evidence in support of this statement. The only

evidence is Gills’s testimony that Wood sent him pictures of the

text messages while Gills interviewed Craft in North Carolina.

(See Gills Dep. Tr. at 81:5-11, ECF No. 33-8). Therefore, the

fact is undisputed. It is also beside the point. There is no

valid argument that Craft was seized when issued citations, and

there is no genuine dispute that Gills had the text messages by

the time Craft allegedly appeared in court.

Gills had probable cause to charge Craft with the alleged

hunting violations. Because he also was not seized within the

meaning of the Fourth Amendment, Gills’s motion for summary

judgment is granted as to this claim.

B. Unlawful Seizure of Evidence

Gills also moves for summary judgment on Craft’s claim that

Gills unlawfully seized his deer antlers from the taxidermist.

Gills argues that “[t]here is not even a shred of evidence that

[d]efendants asked or otherwise solicited [the North Carolina

DNR officers] to seize the antlers, while there is ample

evidence that they did not.” (Def.’s Mem. Supp. Summ. J. at 23,

ECF No. 34). This argument fails.

A reasonable jury could infer that the North Carolina

officers acted at Gills’s request when they seized the antlers.

Gills testified that he “advised the North Carolina officers

that we had a DNA testing facility at WVU that we could test

them at. They sent one of their officers to the taxidermy

shop.” (Gills Dep. Tr. 68:24-69:3, ECF No. 33-8). Gills then

returned to West Virginia with the seized antlers and they

remained in police custody for more than a year. (See ECF No.

33-5).

This is sufficient to establish Gills’s personal

involvement in the alleged seizure of evidence. While one

cannot be vicariously liable for a § 1983 claim, one is liable

if he or she plays an “affirmative part” in an alleged

violation. See Williams v. Rider, No. 1:12–cv–1566, 2014 WL

3881624, at *4 (M.D. Pa. Aug. 7, 2014) (citing Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). “Thus, a §

1983 claim requires factual detail about each defendant’s

personal involvement.” Duncan v. Lee, No. 7:20cv00554, 2020 WL

6875038, at *1 (W.D. Va. Nov. 23, 2020) (citing Wilcox v. Brown,

877 F.3d 161, 170 (4th Cir. 2017)).

The jury could also find Gills’s personal involvement

because of how long he retained the antlers after the initial

warrantless seizure. “The Fourth Amendment regulates all such

interference, and not merely the initial acquisition of

possession.” Mom’s Inc. v. Willman, 109 F. App’x 629, 637 (4th

Cir. 2004) (per curiam) (citing United States v. Place, 462 U.S.

696, 706 (1983)). Defendants’ motion for summary judgment is

denied as to this claim.

IV. Conclusion

For the above reasons, defendants’ motion for summary

judgment (ECF No. 33) is GRANTED in part as to plaintiff’s

malicious prosecution claim and DENIED in part as to his

unlawful seizure of evidence claim. Defendant Andy Damewood is

voluntarily DISMISSED from the action.

Defendants’ motion to exceed the page limit (ECF No. 32)

for their memorandum in support of their motion for summary

judgment is GRANTED. Plaintiff’s motion to extend the filing

deadline (ECF No. 35) for his response to defendants’ motion for

summary judgment is GRANTED.

The Clerk is directed to send a copy of this Memorandum

Opinion and Order to counsel of record.

IT IS SO ORDERED this 4th day of December, 2024.

ENTER:

David A. Faber

Senior United States District Judge

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