Hope Dorn v. the Town of Prosperity

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2005
HOPE DORN,
Plaintiff - Appellee,
v.
THE TOWN OF PROSPERITY,
Defendant – Appellant,
and
CRAIG NELSON, individually as an officer with the Town of
Prosperity Police Department,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. R. Bryan Harwell, District Judge.
(8:06-cv-02571-RBH)
Argued: December 1, 2009 Decided: March 18, 2010
Before KING and SHEDD, Circuit Judges, and John Preston BAILEY,
Chief United States District Judge for the Northern District of
West Virginia, sitting by designation.
Reversed by unpublished opinion. Judge Bailey wrote the
opinion, in which Judge King and Judge Shedd joined.

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Andrew Lindemann, DAVIDSON & LINDEMANN, PA, Columbia, South
Carolina, for Appellant. John Christopher Mills, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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BAILEY, Chief District Judge:
The Town of Prosperity, South Carolina, appeals a judgment
rendered against it on the basis that there can be no false
arrest under South Carolina law where the arrest was effectuated
pursuant to a facially valid arrest warrant. We agree and
reverse the judgment.
I.
This case arises out of the arrest of the plaintiff-
appellee, Hope Dorn, on May 25, 2005, on a warrant for the
municipal offense of obstructing a police officer. The
affidavit for the warrant, which was sworn by Defendant Officer
Craig Nelson of the Town of Prosperity Police Department, cites
an incident that occurred two days prior, on May 23, 2005. On
that evening, Dorn had been to dinner with her fiancee, Kevin
Lathrop, and her child. While returning to her residence, Dorn
and Lathrop had an argument. Dorn and her child left the
vehicle and began to walk home. Lathrop continued, at a high
rate of speed, in the direction of Dorn’s residence, had an
altercation with Dorn’s neighbors, and then left the area after
spinning his tires and briefly losing control of his vehicle.
The neighbors contacted the Town of Prosperity Police
Department, and Officer Nelson responded.

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At the scene, Dorn approached Officer Nelson and spoke with
him. What occurred between Dorn and Nelson is disputed. Dorn
testified that she identified herself to Officer Nelson and that
she identified Lathrop as the probable driver of the vehicle.
Dorn further testified that Lathrop called her cell phone and
that she requested Lathrop to return to the scene to speak with
Nelson. In contrast, Nelson testified that Dorn refused to
identify herself beyond giving her first name and place of
employment. Nelson further testified that Dorn spoke to Lathrop
by cell phone and advised him not to return to the scene or he
would be arrested.
On the following day, May 24, 2005, Officer Nelson sought
an arrest warrant on the municipal offense of obstructing a
police officer. This warrant was issued by the Municipal Judge.
Dorn was subsequently arrested by deputies with the Newberry
County Sheriff’s Department. The charge was later nolle prossed
by the Police Chief.
II.
Ms. Dorn filed this action for money damages in district
court bringing three causes of action: (1) a 42 U.S.C. § 1983
Fourth Amendment claim against Defendant Nelson, individually,
for arresting and prosecuting Dorn without probable cause; (2) a

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pendent common law false arrest claim against Defendant-
Appellant the Town of Prosperity (“Town”) for arresting Dorn
without probable cause; and (3) a pendent common law malicious
prosecution claim against the Town and/or Nelson, individually,
for prosecuting Dorn on the charge of obstructing a police
officer. However, prior to submission of the case to the jury,
Dorn withdrew her malicious prosecution claim. With regard to
the two remaining claims, the jury returned a verdict in favor
of Dorn on the common law false arrest claim and in favor of
Nelson on the Fourth Amendment claim. Judgment in the amount of
$23,500.00 was entered against the Town. Thereafter, the Town
filed a post-trial motion for judgment as a matter of law on the
common law false arrest claim. The motion was denied by the
district court. The Town filed a timely appeal.
III.
Inasmuch as the arresting officer was found not liable on
the federal civil rights claim, the issue presented by this
appeal is whether the arrest, pursuant to a facially valid
warrant, can satisfy the state law requirements of false arrest.
“At common law, allegations that a warrantless arrest or
imprisonment was not supported by probable cause advanced a
claim of false arrest or imprisonment. ... However, allegations

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that an arrest made pursuant to a warrant was not supported by
probable cause, or claims seeking damages for a period after
legal process issued, are analogous to the common-law tort of
malicious prosecution.” Porterfield v. Lott, 156 F.3d 563, 568
(4th Cir. 1998) (quoting Brooks v. City of Winston-Salem, 85
F.3d 178, 181-82 (4th Cir. 1996)).
In Brooks, an action under 42 U.S.C. § 1983, “we held that
a public official cannot be charged with false arrest when he
arrests a defendant pursuant to a facially valid warrant. At
most, such an official can be pursued through a cause of action
for malicious prosecution.” Porterfield, 156 F.3d at 568.
The distinction between malicious prosecution and false
arrest in this situation is whether the arrest was made pursuant
to a warrant. “As a general rule, an unlawful arrest pursuant
to a warrant will be more closely analogous to the common law
tort of malicious prosecution. An arrest warrant constitutes
legal process, and it is the tort of malicious prosecution that
permits damages for confinement pursuant to legal process. On
the other hand, wrongful warrantless arrests typically resemble
the tort of false arrest.” Calero-Colon v. Betancourt-Lebron,
68 F.3d 1, 4 (1st Cir. 1995) (citing Singer v. Fulton County
Sheriff, 63 F.3d 110, 115-16 (2d Cir. 1995)).

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In a 2008 opinion, the South Carolina District Court
reiterated the standards for a cause of action for false arrest
under 42 U.S.C. § 1983:
A claim that a warrantless arrest is not supported by
probable cause constitutes a cause of action for false
arrest as opposed to malicious prosecution. See
Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th
Cir. 1996). As a result, a false arrest claim must
fail where it is made “pursuant to a facially valid
warrant.” Porterfield v. Lott, 156 F.3d 563, 568 (4th
Cir. 1998); see also Brooks, 85 F.3d at 181. It is
undisputed that the plaintiff's arrest was made
pursuant to a facially valid warrant. The plaintiff
has not challenged either the fact that a magistrate
issued a warrant for his arrest or that it was
facially valid. In fact, he has confirmed that a
warrant was so issued and that he was arrested
pursuant to it. At most, therefore, the plaintiff can
allege only “a cause of action for malicious
prosecution” based on an alleged lack of probable
cause for seeking and issuing the warrant in the first
instance. Porterfield, 156 F.3d at 568; see also
Brooks, 85 F.3d at 181 (“However, allegations that an
arrest made pursuant to a warrant was not supported by
probable cause, or claims seeking damages for the
period after legal process issued, are analogous to
the common-law tort of malicious prosecution.”)
Medows v. City of Cayce, No. 3:07-409, 2008 WL 2537131 at *3
(D.S.C. June 24, 2008) (emphasis in original). See also
Richmond v. Pieterse, No. 8:08-3173, 2009 WL 2781972 at *4
(D.S.C. Aug. 27, 2009).
South Carolina appears to agree. In 1900, the Supreme
Court of South Carolina held that false arrest proceeds upon the
theory that the plaintiff has been arrested without authority of

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the law, while an action for malicious prosecution proceeds upon
the theory that the plaintiff has been lawfully arrested under a
warrant charging a criminal offense, but that such prosecution
is malicious and without probable cause. Whaley v. Lawton, 35
S.E. 741, 743 (1900) (citing McConnell v. Kennedy, 7 S.E. 76
(1888)).
In Bushardt v. United Inv. Co., 113 S.E. 637 (1922), the
South Carolina Supreme Court stated that:
It has been definitely decided in this jurisdiction
that where one is “properly arrested by lawful
authority,” “an action for false imprisonment cannot
be maintained against the party causing the arrest.”
Barfield v. Coker, 73 S. C. 192, 53 S. E. 170; McHugh
v. Pundt, 1 Bailey, 441; McConnell v. Kennedy, 29 S.
C. 187, 7 S. E. 76; Whaley v. Lawton, 62 S. C. 91, 40
S. E. 128, 56 L. R. A. 649. If a lawful arrest has
been improvidently procured, without probable cause,
the plaintiff's remedy lies in an action for malicious
prosecution, in which action the necessary element of
malice may be inferred as a fact from the want of
probable cause. Graham v. Bell, 1 Nott & McC. 278, 9
Am. Dec. 687; Stoddard v. Roland, 31 S. C. 344, 9 S.
E. 1027; Hogg v. Pinckney, 16 S. C. 400; China v. S.
A. L. Ry. Co., 107 S. C. 179, 92 S. E. 335.
113 S.E. at 639.
In the McConnell decision, relied on in Bushardt, the
Supreme Court of South Carolina had explained:
It seems to us that the gist of the action for false
imprisonment is that one has been restrained of his
liberty without lawful authority; and, where it
appears that the restraint or imprisonment complained
of is under lawful process, the action must
necessarily fail. It is quite true that one arrested

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and restrained of his liberty, even under lawful
process, may have a cause of action, if it is alleged
and shown that the prosecution was malicious, and was
without probable cause, and has terminated; but that
is a different cause of action, and depends upon
different allegations and proofs, and the action for
malicious prosecution must not be confounded with an
action for false imprisonment.
McConnell, 7 S.E. at 78.
More than fifty years after Bushardt, the Court of Appeals
held that a claim of false arrest did not lie where the
plaintiff was arrested pursuant to a warrant. Watkins v. Mobil
Oil Corp., 313 S.E.2d 641 (S.C. Ct. App. 1984). The Court
stated:
The dispositive rule of law of this case is well
stated in Bushardt v. United Inv. Co., 121 S.C. 324,
113 S.E. 637 (1922). In essence this case holds that
where one is lawfully arrested by lawful authority, an
action for false imprisonment cannot be maintained
against the party causing the arrest.
313 S.E.2d at 642. Accord Manley v. Manley, 353 S.E.2d 312,
314-15 (S.C. Ct. App. 1987) (“Even if the arrest is
improvidently procured, the wronged party's remedy lies in an
action for malicious prosecution.”).
In 1985, the Supreme Court of South Carolina abolished the
doctrine of sovereign immunity as it applied to the state and
all local subdivisions, subject to certain qualifications.
McCall v. Batson, 329 S.E.2d 741 (1985).

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In James v. Fast Fare, Inc., 685 F. Supp. 565, 566-67
(D.S.C. 1988), the District Court held that where a person is
arrested by law enforcement personnel pursuant to a facially
valid warrant, “there can be no cause of action for false
imprisonment asserted against the party causing the arrest,
because the arrest has been made pursuant to lawful authority,”
citing Watkins, supra.
Ms. Dorn relies upon Gist v. Berkeley County Sheriff’s
Dept., 521 S.E.2d 163 (1999). This is a per curiam opinion from
the South Carolina Court of Appeals, in which the court reversed
a grant of summary judgment in favor of the Sheriff’s
Department. The decision focused on the standard for finding
liability under the South Carolina Tort Claims Act, § 15-78-
60(3),*
* “In 1986, the legislature enacted the South Carolina Tort
Claims Act, S.C. Code Ann. §§ 15-78-10 to -200 (Supp. 1997),
which waives immunity while also providing specific, enumerated
exceptions limiting the liability of the state and its political
subdivisions in certain circumstances. The Tort Claims Act ‘is
the exclusive civil remedy available for any tort committed by a
governmental entity, its employees, or its agents except as
provided in § 15-78-70(b).’” Wells v. City of Lynchburg, 501
S.E.2d 746, 749 (S.C. Ct. App. 1998).
rather than the elements of a valid claim for false
arrest. In its decision, the Court of Appeals relied upon two
cases, both of which cases involved warrantless arrests; Jones
v. City of Columbia, 389 S.E.2d 662 (1990), and Wortman v.
Spartanburg, 425 S.E.2d 18 (1992). The decision did not

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discuss, nor could the Court of Appeals overrule, the long-
standing precedent in South Carolina that there can be no claim
for false arrest where the arrest is effectuated pursuant to a
facially valid warrant.
The subsequent case of Law v. South Carolina Dept. of
Corrections, 629 S.E.2d 642 (2006), falls into the same trap.
The decision, relying on Gist, finds that the fundamental issue
in determining the lawfulness of an arrest is whether there was
probable cause to make the arrest. This is true in the
situation of a warrantless arrest. Again, the decision did not
discuss, let alone overrule, the long-standing precedent in
South Carolina that there can be no claim for false arrest where
the arrest is effectuated pursuant to a facially valid warrant.
Furthermore, in Law, the Court reiterated the elements of a
false arrest claim. The first element enumerated is “that the
defendant restrained the plaintiff.” 629 S.E.2d at 651. In the
present case, the Town of Prosperity did not restrain the
plaintiff. Rather, the plaintiff was arrested and restrained by
the Newberry County Sheriff’s Department.
Subsequently, the South Carolina District Court, in
Mitchell v. Cannon, No. 2:07-cv-3259, 2009 WL 824202 at *5
(D.S.C. March 26, 2009), stated that “a plaintiff may not
maintain a cause of action for false imprisonment where he has

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been arrested by law enforcement pursuant to a valid arrest
warrant. Jones v. City of Columbia, 389 S.E.2d 662, 663 (S.C.
1990) (‘An action for false imprisonment cannot be maintained
where one is arrested by lawful authority.’).”
Finally, in Campbell v. McIlwain, No. 8:09-1156, 2009 WL
2176241 (D.S.C. July 20, 2009), the District Court reiterated
the rule that there can be no claim for false arrest where a
defendant is arrested pursuant to a facially valid warrant and
noted that “[i]t is not the duty of the arresting officer to
assess guilt or innocence, but merely to serve the warrant.” In
its opinion, the Court added that “[a]n arresting officer is
generally entitled to rely on a facially valid warrant in
effecting an arrest.” Id. At *4.
Based upon the foregoing precedent, we follow the South
Carolina rule that there can be no claim for false arrest where
a person is arrested pursuant to a facially valid warrant.
Since Ms. Dorn was arrested pursuant to a facially valid warrant
her judgment against the Town of Prosperity for false arrest
must be reversed.
REVERSED

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