Shawn MASSEY, Plaintiff-Appellant, v. J.J. OJANIIT, Charlotte-Mecklenburg Police Officer; Gerald Esposito, Charlotte-Mecklenburg Police Officer; Tom G. Ledford, Charlotte-Mecklenburg Police Officer; John and Jane Does, # 1-10, Charlotte-Mecklenburg Police Officers, Defendants-Appellees.
No. 13-1460.
United States Court of Appeals, Fourth Circuit.
Argued: March 19, 2014. Decided: July 21, 2014.
759 F.3d 343
Before MOTZ, KING, and THACKER, Circuit Judges.
Affirmed in part and dismissed in part by published opinion. Judge KING wrote the opinion, in which Judge MOTZ and Judge THACKER joined.
KING, Circuit Judge:
In early 2010, plaintiff Shawn Massey was released from a North Carolina prison after a state court in Mecklenburg County struck five verdicts that had been ren-
I.
On September 23, 2011, Massey filed his complaint in the Western District of North Carolina, alleging
A.
In conducting its analysis, the district court recognized that ”
Open to the district court‘s consideration were Massey‘s complaint; the officers’ answers thereto; matters of public record; exhibits to the answers (as there were no exhibits to the complaint); and exhibits to the
1.
As the complaint, the 1999 trial transcript, and other exhibits reflect, Emerald Bay Apartments resident Samantha Wood contacted the Charlotte-Mecklenburg Police Department on May 22, 1998, and reported that she and her two young children had arrived home at about 10:00 a.m. to find an armed man at the doorway of their apartment. The man held a gun to Wood‘s eighteen-month-old daughter‘s head, pushed the family inside the apartment, and attempted to rape Wood. Because Wood was menstruating, the man ceased that pursuit and proceeded to search for money, inducing Wood to hand over sixty dollars from her purse. On then exiting the apartment, the man warned Wood that if she called the police, he would kill her and her family. The man spent approximately thirty minutes in the apartment.
Despite her assailant‘s threat, Wood called the police, and Officers Ojaniit and Esposito were promptly dispatched to the crime scene. Ojaniit documented Wood‘s description of the culprit as a 5’ 9“, 180-pound black man who wore “his hair pulled back from his face and (4) small braids on the back of his head.” J.A. 73 (May 22, 1998 report of Ojaniit attached as exhibit to officers’ answers). The report further reflects that Wood described the man as wearing a red shirt and blue denim shorts.
The following day, the two officers returned to the 250-unit apartment complex in search of witnesses. The property manager, Theresa Savall, reported that she had encountered a black man in his twenties, approximately 5’ 11” and at least 165 pounds, as she was walking around the complex between 10:00 and 11:00 a.m. the previous day. Because Savall stated that the man approached her after exiting from the rear patio area of Unit 5038-C, Officer Esposito sought to interview the resident of that apartment, April Pride. After Esposito misinformed Pride that he was investigating a noise complaint, Pride advised Esposito that her friend Shawn Massey had spent the previous night in her apartment. According to Esposito‘s report, Pride described Massey as being twenty-five years old and “wear[ing] his hair pulled back with 4 or 5 braids.” J.A. 75 (May 23, 1998 report of Esposito attached as exhibit to officers’ answers). That description was “almost verbatim the same description that Ms. Wood had given of her assailant‘s hairstyle.” Compl. ¶ 19.
Officer Ojaniit thereafter transported Wood to the police station to review a six-photograph array that had been prepared by Officer Ledford and that included a mug shot of Massey taken at the time of a previous arrest. See J.A. 76 (photographic lineup attached as exhibit to officers’ answers). Ojaniit showed Wood the lineup, and Wood selected Massey‘s photo as “looking the most like” her assailant. Compl. ¶ 20 (emphasis added). Ojaniit wrote in his report, however, that Wood said that Massey‘s photo “looked like the suspect except that the suspect had longer hair with braids and he did not have a beard.” J.A. 77 (emphasis added) (May 23, 1998 report of Ojaniit attached as exhibit to officers’ answers). Three days later, on May 26, 1998, Ledford presented the same array of photos to Savall, who identified Massey as the person who had
2.
Based on the witnesses’ photo identifications of Massey and Pride‘s statements placing him near the crime scene, Officer Ledford secured arrest warrants on July 7, 1998, charging Massey with one count each of robbery with a dangerous weapon and felonious breaking and entering, plus three counts of second-degree kidnapping. See J.A. 78-85 (arrest warrants attached as exhibit to answers of Officers Ojaniit and Esposito). On September 8, 1998, a grand jury in Mecklenburg County returned five indictments against Massey. See id. at 86-90 (indictments attached as exhibit to answers of Ojaniit and Esposito). Massey was tried on the consolidated indictments about a year thereafter, beginning on September 13, 1999.
During the trial, the prosecution‘s witnesses included Wood, Savall, Pride, and Officers Ojaniit and Esposito. Wood detailed the events of May 22, 1998, and described her assailant as having “braids in his hair, with five hanging down.” J.A. 136. Prompted by the prosecutor to specify whether “the braids [went] all through his hair or were . . . just on the back or just on the sides,” Wood testified that the braids “went through.” Id. at 137. In other words, Wood indicated that her assailant‘s hair was braided in what are commonly known as “cornrows.” See Compl. ¶ 12. She also stated that her assailant wore a red, jersey-like shirt with hurricane symbols on it. Wood then made a positive in-court identification of Massey as her assailant. According to Wood, although Massey now had short hair, she recognized him from his facial features, height, and voice.
Savall described to the jury the man who had approached her at the Emerald Bay Apartments on the morning of May 22, 1998, explaining that “he was acting kind of hyper” and made comments to her such as, “Could we go out,” and “Baby, you look good.” J.A. 166-67. Savall testified that the man was wearing an orange-and-white jersey with long pants similar to jeans not the red jersey and denim shorts that Wood said her attacker wore. Savall did not notice the man‘s hair during their three-to-four-minute encounter because he was wearing a hat. More specifically, she did not “recall any braids.” Id. at 176. Savall was “fairly certain” that she had accurately recognized the man in the photo lineup, id. at 172, and she made a positive in-court identification of Massey.
Pride testified next for the prosecution, confirming that Massey, her friend of about ten years, had stayed in her apartment on the night of May 21, 1998, and was still there when she left for work the next day, at approximately 6:45 a.m. While being cross-examined by the defense, Pride could not recall Massey ever having braids and stated that Massey wore a “low,” or short, haircut, including on May 22, 1998. See J.A. 190-91. Pride‘s evidence thus conflicted with Officer Esposito‘s report of his May 23, 1998 interview with Pride, insofar as the report indicated that Pride described Massey as having hair in four or five braids. On redirect examination by the prosecutor, Pride testified that she did not recall having so advised Esposito when he interviewed her. For his part, Esposito testified that he would not have recorded Pride as describing Massey with braids if Pride had not said that in her interview. The trial court gave a limiting instruction with respect to
Later, during his direct and cross-examinations, Officer Ojaniit was questioned about Wood‘s identification of Massey in the photographic lineup of May 23, 1998. Ojaniit acknowledged that, although his report reflected that Wood chose Massey‘s photo as looking “like” the suspect, Wood had actually said that the photo looked “the most like” her assailant. See J.A. 297-98, 304-05. The defense challenged the notion that “looking the most like someone is . . . a positive I.D.,” prompting Ojaniit to respond that “that‘s a question you have to ask [Wood].” Id. at 305.
After the prosecution rested, the defense recalled Pride to the witness stand. She testified that she was “positive” that Massey did not have braids in his hair on May 22, 1998, and she reiterated that she had not made any contrary statement to Officer Esposito. See J.A. 377-78. In addition to Pride, the defense called four of Massey‘s friends and family members to testify that Massey never wore braids. Another defense witness was Brady Dorsey, the bookkeeper for Massey‘s employer, Dorsey Concrete. Dorsey, who had known Massey since Massey was a small child, also testified that Massey had never had braids or long hair.
Additionally, relevant to the alibi that Massey sought to establish, Dorsey produced a payroll journal showing that Massey worked eight hours on May 22, 1998, beginning at around 7:00 a.m. Dorsey elaborated that he had transported Massey from Graymont Road (where Dorsey and Massey separately resided) to the job site. According to Dorsey, he and Massey departed Graymont sometime between 6:40 and 6:55 a.m. Dorsey‘s evidence was thus inconsistent with Pride‘s testimony, which placed Massey in her apartment several miles from Graymont at about 6:45 a.m.
On September 17, 1999, the jury convicted Massey on all five charges. The trial court thereafter sentenced Massey to 103 to 133 months in prison for robbery with a dangerous weapon, plus a consecutive term of 34 to 50 months for the remaining four offenses. Massey‘s convictions and sentences were later affirmed by the Court of Appeals of North Carolina. See State v. Massey, No. COA99-557, 142 N.C.App. 390, 544 S.E.2d 29 (N.C.Ct.App. Feb. 20, 2001) (attached as exhibit to
3.
In the mid-2000s, the Wrongful Conviction Clinic at Duke University (the “Clinic“) began investigating Massey‘s case. See Compl. ¶¶ 32-33. The Clinic obtained a series of mug shots of Massey taken on seven occasions between April 18, 1991, and May 29, 1998. Each of the photos—including one taken on March 9, 1998—showed Massey with short hair. After examining the photos, two professional barbers made affidavits that Massey could not have grown his hair long enough to have it braided in cornrows between March 9, 1998, and the date of the crimes against Wood and her children, May 22, 1998. Furthermore, according to the barbers, if Massey had cornrows on May 22, 1998, the lines in his scalp left by the braiding would have been visible in his May 29, 1998 photo, but no such lines were apparent. The Clinic also interviewed Wood and discovered that, despite her unequivocal identification of Massey during the trial, she had expressed doubt to the prosecutor that Massey was her assailant after she first saw him in court, before hearing him speak and further observing him at a pretrial hearing. Wood‘s initial
The Clinic presented its investigation to the District Attorney of Mecklenburg County. As a result, on May 5, 2010, the prosecutor moved in state court to set aside the jury‘s verdicts against Massey and have him released from custody. The motion explained that the evidence uncovered by the Clinic made “it likely that a jury would conclude that although there is substantial evidence placing [Massey] in the area and identifying him as the perpetrator, there is reasonable doubt about whether he committed the offense.” J.A. 65 (motion attached as exhibit to officers’ answers). In granting the prosecutor‘s motion, the court concluded that, “[g]iven the totality of the circumstances that now exist[] in this case, if the jury had all the facts that are now available, it cannot be said with certainty that the jury would have reached the same conclusion.” State v. Massey, No. 98-CRS-033738(L), slip op. at 4 (N.C.Super.Ct. May 6, 2010) (attached as exhibit to officers’ answers). The court therefore struck the five verdicts against Massey and ordered that he be released immediately from custody. Massey was freed that same day.
B.
In these post-release civil proceedings, the crux of Massey‘s
Pursuant to
For the reasons explained in its Order of March 29, 2013, the district court opted instead to grant all three
Massey timely noted this appeal from the district court‘s judgment, and we possess jurisdiction pursuant to
II.
A.
We begin with Massey‘s attempt to revive his claims against Officer Ledford. As noted above, Massey unequivocally advised the district court that he did not object to the Report insofar as the magistrate judge recommended the granting of Ledford‘s motion for judgment on the pleadings pursuant to
It is no help to Massey that the district court conducted a de novo review of the magistrate judge‘s recommendations with respect to Officer Ledford, because such review cannot cure the failure to properly and timely object. The Supreme Court‘s decision in Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), is instructive. There, the Court held that “a court of appeals may exercise its supervisory powers to establish a rule that the failure to file objections to the magistrate‘s report waives the right to appeal the district court‘s judgment.” Thomas, 474 U.S. at 142. The Court also affirmed the Sixth Circuit‘s application of such a rule to Thomas, who was deemed to have waived appellate review by failing to object to a magistrate judge‘s report, even though the district court had conducted a subsequent de novo review of the entire record and dismissed Thomas‘s habeas corpus petition on the merits. See id. at 144-45. We likewise conclude that Massey has waived his right to appeal the judgment in Ledford‘s favor. Accordingly, we dismiss Massey‘s appeal as to Ledford.
B.
Next, we review the district court‘s disposition of the
Massey‘s primary grievance with respect to the district court‘s reliance on the 1999 trial transcript is that the transcript is “neither a ‘fact,’ nor was it construed in the light most favorable to [him].” Br. of Appellant 29 (quoting Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir.2013)). We recently reit-
In these circumstances, we approve of the district court‘s consideration of the 1999 trial transcript, as well as other exhibits to the officers’ answers and
C.
Turning to the merits of the district court‘s award of
In applying the foregoing standards, the complaint will survive only if it “states a plausible claim for relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Because Officers Ojaniit and Esposito have asserted qualified immunity with respect to Massey‘s
Like the district court, we conclude under the first step of the qualified immunity analysis—with respect to each of Massey‘s
1.
The
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. See Washington, 407 F.3d at 282-83 (citing Zahrey, 221 F.3d at 349). 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. at 283 (citing, inter alia, Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.1988) (“[A] prosecutor‘s decision to charge, a grand jury‘s decision to indict, a prosecutor‘s decision not to drop charges but to proceed to trial—none of these decisions will shield a police officer who deliberately supplied misleading information that influenced the decision.“)). As Judge Motz explained in Evans v. Chalmers, “constitutional torts, like their common law brethren, require a demonstration of both but-for and proximate causation.” 703 F.3d 636, 647 (4th Cir.2012).
a.
Beginning with Officer Esposito, we take as true that he fabricated the portion of his May 23, 1998 report recording Pride‘s statement that Massey wore
At the outset, we must reject the main premise of Massey‘s case against the officers: that “if [he] did not wear his hair in cornrows on May 22, 1998, he could not have been the armed black man who robbed and kidnapped Ms. Wood and her children.” See Br. of Appellant 30-31; see also id. at 20 (asserting that Massey “was exonerated in May 2010, when the equivalent of nonbiological DNA excluded him as a suspect in the crimes“). The problem for Massey, as the district court observed, is that he
raises to the level of certainty that the crime could only have been committed by a person with braids. This is an overstatement of an otherwise valid argument. That an eyewitness described an assailant as having braids does not, by operation of nature or law, exonerate all suspects who do not have braids; it merely calls into question that aspect of the description as applied against anyone not wearing braids. The factors which influence a witness[‘s] memory and perception are myriad; . . . it is within the realm of possibility that a person can accurately identify another person even as their perception or memory is incorrect as to certain aspects of that person‘s appearance.
Order 18 n. 6. Indeed, although both Wood and Savall identified Massey, they gave different descriptions of the clothes that he wore at the time of the crimes. Such discrepancy did not hinder the jury from finding Massey guilty beyond a reasonable doubt. Similarly, the jury was not swayed by Massey‘s short-hair defense—perhaps because it believed that Massey in fact had braids, perhaps because it thought that Wood misremembered Massey‘s hairstyle, or perhaps because it deemed his hair to be non-dispositive in light of Wood‘s identification of Massey from his facial features, height, and voice.
Simply put, the central issue at trial was not whether Massey had cornrows or any other type of braids. Rather, the prosecution‘s case focused on the positive in-court identifications made by both Wood and Savall, as well as Pride‘s testimony contradicting Massey‘s alibi and placing him at the apartment complex the morning of the crimes. The prosecutor initially did not question Pride about Massey‘s hairstyle, and addressed Officer Esposito‘s report only after, on cross-examination by the defense, Pride denied telling Esposito that Massey wore braids. At most, despite the trial court‘s instruction that it was not to be used for impeachment purposes, the report called Pride‘s credibility into question. In these circumstances, we agree with the district court that there is not a “sufficiently strong [causal nexus] to bear the conclusion that the statement fabricated by Officer Esposito caused the conviction[s] of Shawn Massey.” See Order 20.
We further conclude that Massey‘s convictions were not a foreseeable consequence of the assumed fabrication. That is, it is not plausible that Officer Esposito could have anticipated that, by falsely stating that Pride told him Massey wore braids, Massey not only would be included in the photographic lineup, but also would be identified by two witnesses (including the victim)—both by photo and in person at trial. In sum, applying well-settled tort principles, we cannot say that the fabrication was a but-for or proximate cause of Massey‘s convictions. Accordingly, we affirm the judgment in Esposito‘s favor on Count I.
b.
Turning to Massey‘s
We disagree. Even assuming that Wood did not truly identify Massey in the photographic lineup, Savall unequivocally selected Massey‘s photo, and Pride placed him near the crime scene. Furthermore, Wood positively identified Massey as her assailant at trial. And, in his own trial testimony, Officer Ojaniit mitigated any confusion about Wood‘s initial identification by accurately presenting Wood‘s words to the jury. As such, Massey has failed to plead facts to indicate that Ojaniit‘s fabrication caused his convictions or that the convictions were the reasonably foreseeable result of the fabrication. We thus affirm the judgment on Ojaniit‘s behalf as to Count I.
2.
Next, the
The Supreme Court has long made clear that “an indictment, ‘fair upon its face,’ returned by a ‘properly constituted grand jury,’ conclusively determines the existence of probable cause.” Durham, 690 F.3d at 188-89 (quoting Gerstein v. Pugh, 420 U.S. 103, 117 n. 19, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). “[N]otwithstanding the conclusive effect” of an indictment, we have stressed that “a
False statements alone do not, however, run afoul of the
It is on the materiality requirement that Massey‘s
Ultimately, it is a “fair probability” that a suspect had committed a crime where the victim identifies the suspect out of [a] six person photo lineup, a second person independently identifies him (from the same six person lineup) as having been near the scene of the crime during the relevant period, and a third confirms his identity and relates that she last saw him in the vicinity of the crime area several hours earlier. The discrepancies between the description by Wood and Massey‘s actual appearance, though relevant, do not rise to the level to defeat probable cause. To obtain the warrant, the officers needed only a fair probability that Massey committed the crime against Wood. The multiple identifications of Massey suffice to exceed that threshold.
Id. As to Ojaniit, the court observed that “probable cause to arrest Massey [does not] disappear[] upon the inclusion of the word ‘most’ in [Ojaniit‘s] report.” Id. at 25. We agree and thus affirm the entry of judgment for Ojaniit and Esposito on Count II.
3.
According to the
4.
The complaint finally alleges state law claims in Counts IV and V for obstruction of justice, false imprisonment, malicious prosecution, and conspiracy. The district court dismissed Massey‘s obstruction of justice claim in reliance on our decision in Evans, where we recognized that,
[e]ven though North Carolina courts have interpreted common-law obstruction of justice to include fabrication of evidence, . . . we have not found—and plaintiffs have not offered—any case from any jurisdiction recognizing a common-law obstruction of justice claim against a police officer for his actions relating to a criminal proceeding.
703 F.3d at 658 (citation omitted). We therefore deemed it unrealistic that North Carolina would uphold an obstruction of justice claim in that context. Id. There has been a dearth of North Carolina case law developed since Evans was decided. Therefore, Evans controls this case as well.
Massey‘s other state law claims fail under the same rationale as their federal counterparts. To sustain a malicious prosecution claim, a plaintiff must establish, inter alia, that the defendant lacked probable cause to initiate the proceeding against the plaintiff. See Best v. Duke Univ., 337 N.C. 742, 448 S.E.2d 506, 510 (1994). False imprisonment also calls for the absence of probable cause. See Moore v. Evans, 124 N.C.App. 35, 476 S.E.2d 415, 422 (1996). As previously shown, the officers possessed ample probable cause to arrest Massey, even absent the fabricated evidence. Thus, Massey has not pleaded the elements essential to a malicious prosecution or false imprisonment claim under North Carolina law. Furthermore, without sufficiently alleged wrongful acts, the conspiracy claim cannot survive. See State ex rel. Cooper v. Ridgeway Brands Mfg., 362 N.C. 431, 666 S.E.2d 107, 115 (2008). We therefore affirm the district court‘s dismissal of the state claims alleged in Counts IV and V of the complaint.
III.
Pursuant to the foregoing, we affirm the judgment as to Officers Ojaniit and Esposito, and we dismiss the appeal as to Officer Ledford.
AFFIRMED IN PART AND DISMISSED IN PART.
Judge KING wrote the opinion, in which Judge MOTZ and Judge THACKER joined.
Notes
The boundary between
Halsey, 750 F.3d at 291 (citations omitted); see also Jones, 856 F.2d at 994 (“[A]t some point after a person is arrested, the question whether his continued confinement or prosecution is (Continued) unconstitutional passes over from the