Thomas Lee Sowers v. City of Charlotte; Dustin Wippel; William Pallone; Edward Kaminski

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2570
THOMAS LEE SOWERS,
Plaintiff – Appellant,
v.
CITY OF CHARLOTTE; DUSTIN WIPPEL; WILLIAM PALLONE; EDWARD
KAMINSKI,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:14-cv-00523-RJC-DCK)
Submitted: May 11, 2016 Decided: September 12, 2016
Before KEENAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas Lee Sowers, Appellant Pro Se. Richard Harcourt Fulton,
OFFICE OF THE CITY ATTORNEY, Charlotte, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Thomas Lee Sowers appeals from the district court’s order
granting Appellees’ motion for summary judgment in his 42 U.S.C.
§ 1983 (2012) action, which raised claims of false arrest and
malicious prosecution. Sowers’ causes of action rested on his
contention that he was arrested without probable cause for
trespassing and obstruction of officers. On appeal, Sowers
asserts that the district court improperly extended the time to
file a motion for summary judgment and that material issues of
fact prevented summary judgment on his substantive
constitutional claims. We affirm.
Initially, we find no error in the district court’s
extension of time. See Marryshow v. Flynn, 986 F.2d 689, 693
(4th Cir. 1993) (“When the date specified for filing court
papers is not jurisdictional, broad discretion is given to the
trial court to manage its docket.”). With regard to Sowers’
substantive claims, while the district court focused on the
probable cause for the trespassing arrest, we note that “[w]e
are, of course, entitled to affirm on any ground appearing in
the record, including theories not relied upon or rejected by
the district court.” Scott v. United States, 328 F.3d 132, 137
(4th Cir. 2003). Because we find that the Defendant officers
were entitled to qualified immunity, we affirm.

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To state a claim for false arrest or imprisonment under
§ 1983, a plaintiff must demonstrate that he was arrested
without probable cause. See Street v. Surdyka, 492 F.2d 368,
372-73 (4th Cir. 1974) (“[T]here is no cause of action for
‘false arrest’ under section 1983 unless the arresting officer
lacked probable cause.”); see also Brown v. Gilmore, 278 F.3d
362, 367-68 (4th Cir. 2002) (analyzing false arrest claim for
whether seizure was unreasonable). In addition, “[a] malicious
prosecution claim under § 1983 is properly understood as a
Fourth Amendment claim for unreasonable seizure which
incorporates certain elements of the common law tort.” Evans v.
Chalmers, 703 F.3d 636, 646 (4th Cir. 2012) (internal quotation
marks omitted). “To state such a claim, 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.” Id.
Therefore, the question of whether Appellees violated Sowers’
constitutional rights depends on whether they had probable cause
to arrest him at the time of his arrest. See Brown, 278 F.3d at
367 (evaluatingprobable cause in light of officer’s knowledge at
time of arrest).
Pursuant to N.C. Gen. Stat. § 14–223, “[i]f any person
shall willfully and unlawfully resist, delay or obstruct a
public officer in discharging or attempting to discharge a duty

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of his office, he shall be guilty of a Class 2 misdemeanor.”
The elements of the offense are: 1) that the victim was a public
officer; 2) that the arrestee knew that the victim was a public
officer; 3) that the victim was discharging or attempting to
discharge a duty of his office; 4) that the arrestee resisted,
delayed, or obstructed the victim in discharging or attempting
to discharge a duty of his office; and 5) that the arrestee
acted willfully and unlawfully. North Carolina v. Sinclair, 663
S.E.2d 866, 870 (N.C. App. 2008). “The general rule is that
merely remonstrating with an officer . . . or criticizing or
questioning an officer while he is performing his duty, when
done in an orderly manner, does not amount to obstructing or
delaying an officer in the performance of his duties.” North
Carolina v. Leigh, 179 S.E.2d 708, 713 (N.C. 1971). “Only those
communications intended to hinder or prevent an officer from
carrying out his duty are discouraged by [N.C. Gen. Stat.
§ 14-223].” Burton v. City of Durham, 457 S.E.2d 329, 332 (N.C.
App. 1995).
In general, qualified immunity entails a two-step analysis.
First, the court decides whether violation of a constitutional
right has been alleged at all. Brown v. Gilmore, 278 F.3d 362,
367 (4th Cir. 2002) (quoting Saucier v. Katz, 533 U.S. 194, 200
(2001)). If not, the qualified immunity inquiry ends. Step two
directs the court to determine whether the right was “clearly

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established” at the time of the incident and evaluates whether a
reasonable officer would have understood that the conduct at
issue violated that clearly established right. Anderson v.
Creighton, 483 U.S. 635, 639-40 (1987). But see Pearson v.
Callahan, 555 U.S. 223, 236 (2009) (holding that court may
exercise discretion in determining which prong to address
first). Because qualified immunity turns entirely on objective
reasonableness, an officer’s subjective intent or state of mind
is not relevant to the analysis. Park v. Shiflett, 250 F.3d
843, 853 (4th Cir. 2001).
In defining a clearly established right, it is not enough
to cite a general constitutional rule of wide import. Anderson,
483 U.S. at 639. Rather, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Id. at 641. Thus,
“[t]he relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier, 533 U.S. at 202.
Accordingly, “‘all [officials] but the plainly incompetent or
those who knowingly violate the law’ are protected.”
Porterfield, 156 F.3d at 567 (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986)).

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In analyzing whether law enforcement officers have
qualified immunity in a false arrest claim pursuant to § 1983,
the issue is not whether probable cause actually exists but
whether a reasonable officer in the officer’s position would
have believed he had probable cause to arrest. See id. Courts
consider all of the circumstances known to the officer at the
time of the arrest to determine whether there was probable
cause. Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996). The
arresting officer’s belief need not be correct or even more
likely true than false, so long as it is reasonable. Texas v.
Brown, 460 U.S. 730, 742 (1983). A magistrate’s probable cause
determination indicates a reasonable officer would believe he or
she had probable cause to arrest. See Brooks v. City of
Winston-Salem, 85 F.3d 178, 184 (4th Cir. 1996); Torchinsky v.
Siwinski, 942 F.2d 257, 261-62 (4th Cir. 1991)(explaining that
decisions of a state criminal judge and federal district court
judge both finding probable cause are relevant to qualified
immunity).
We conclude that the Defendant officers were entitled to
qualified immunity for their arrest of Sowers for obstructing
the officers. The officers had direct eyewitness information
that Sowers was being disorderly and was ejected from a nearby
restaurant with his daughter and his daughter’s boyfriend.
While the officers were arresting Sowers’ daughter and her

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boyfriend, Sowers approached the officers, asked questions, and
refused to follow directions. The officers warned Sowers they
would arrest him if he did not listen to the officers, but he
refused to cooperate. Given the chaotic scene and Sowers’
confrontational behavior, this information could lead reasonable
officers to conclude that Sowers was impeding or delaying the
officers, in violation of the statute. Moreover, the magistrate
judge held probable cause supported the arrest. In addition,
the district court held there was likely probable cause to
arrest Sowers and the officers enjoyed qualified immunity. See
Torchinsky, 942 F.2d at 261-62. Given the totality of the
circumstances, Defendants’ conduct fell within the range of
reasonable judgment. Thus, qualified immunity shields them from
money damages.
Accordingly, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED

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