United States District Court, E.D. Virginia, Alexandria Division
M. BRIAKEMA UNITED STATES DISTRICT JUDGE
the Court is Denise Lawhorn's ("defendant" or
"Lawhorn") Motion for Summary Judgment [Dkt. No.
82], Dec. 14, 2015. Plaintiff Leslie Patterson
("plaintiff' or "Patterson"), the
African-American pastor of the First Baptist Church of
Sterling ("FBCS" or the "church")
initially filed this civil action on October 23, 2014
prose in the Prince William Circuit Court against
two agents of the Virginia Department of Taxation, Lawhorn
and John Hawse ("Hawse"), in their individual
capacities based on allegations that they had violated his
Fourth Amendment "right not [to] be arrested or
subjected to criminal prosecution without probable
cause" and the Virginia malicious prosecution statute.
Second Am. Compl. ¶ 52 [Dkt. No. 30], Jun. 8, 2015.
April 10, 2015, Lawhorn and Hawse filed a Joint Notice of
Removal [Dkt. No. 1], which resulted in plaintiffs Complaint
being removed to this court, and on April 17, 2015 they filed
a motion to dismiss. See Defs.' Joint Mot. to Dismiss
[Dkt. No. 3], Apr. 17, 2014. On May 8, 2015, Patterson
retained counsel, see Notice of Appearance [Dkt. No. 12], and
on June 5, 2015, he filed his first Amended Complaint [Dkt.
No. 20]. Defendants filed a revised motion to dismiss on June
19, 2015, see Defs.' Mot. to Dismiss [Dkt. No. 21], Jun.
19, 2016, which the Court granted in part on June 30, 2015,
dismissing all claims against Hawse. Order [Dkt. No. 26],
filed a Second Amended Complaint [Dkt. No. 30] on July 9,
2015, consisting of thirteen counts alleging violations of
the Virginia malicious prosecution statute and thirteen
counts alleging violations of 42 U.S.C. § 1983 against
Lawhorn alone. Specifically, plaintiff alleges that the six
felony warrants and seven misdemeanor warrants for which
Lawhorn was the complainant, all of which resulted in his
arrest, were not based on probable cause and that Lawhorn is
liable to him for violating his Fourth Amendment right to be
free of unlawful seizure and his right under Virginia law not
to be subject to malicious prosecution. In particular,
Patterson alleges that both the felony and misdemeanor
complaints supporting the warrants at issue contain bare
recitations of the elements of each statute and do not
contain any written factual support for their legal
conclusions. Plaintiff seeks compensatory and punitive
damages as well as attorneys' fees and costs. Second Am.
motion for summary judgment, Lawhorn argues that plaintiffs
§ 1983 claims are barred by Eleventh Amendment Sovereign
Immunity and that she is entitled to qualified immunity as to
the claims under § 1983. In addition, Lawhorn argues
that there is insufficient evidence in this record to support
any of plaintiff s claims. For the reasons discussed below,
defendant's motion for summary judgment will be granted.
investigation into plaintiffs tax and financial activities
was started by the Virginia Department of Taxation after it
received a referral from the Loudoun County Sheriffs
Department and the United States Secret Service. Def.'s
Mem. in Supp of Mot. for Summ. J. 3 [Dkt. No. 83], Dec. 14,
2015 ("Def.'s Mem."); Def.'s, Notice of
Sub. of Exs. For Mem. in Supp. of Mot. for Summ. J., Ex. 1,
at 2; Ex. 3, ¶ 6 [Dkt. No. 84], Dec. 14, 2015
[hereinafter "Def.'s Ex."]. These agencies
had been alerted to Patterson's suspicious financial and
tax activities by former members of his church. Def.'s
Mot. to Strike and Rebuttal Br. in Supp. of Mot. for Summ. J.
2 [Dkt. No. 92], Jan. 19, 2016 ("Def.'s
Rebuttal"); Pl's Mem. in Opp'n to Def.'s
Mot. for Summ. J. 1 [Dkt. No. 90], Jan. 12, 2016
("Pl's Opp'n"). Lawhorn was one of the
Virginia Department of Taxation's criminal investigators
assigned to investigate the allegations about Patterson's
activities. Def.'s Ex. 3 (McGarvey DecL), ¶¶ 5,
8. In her role as a criminal investigator, Lawhorn was
authorized to perform independent investigations of suspected
violations of the Commonwealth's tax laws and related
offenses. Def.'s Ex. 2, at 1. Once she completed an
investigation, she was required to present her findings and
conclusions to supervisors within her department for their
review; then, if they approved filing criminal charges, to
obtain further review and approval from the appropriate
prosecutorial entities. Pl's Opp'n, Ex. C (Lawhorn
Dep.), at 111:12-15 [hereinafter "Pl's Ex."].
Because Lawhorn was not a law enforcement officer, she could
not apply for felony warrants without a prosecutor's
approval. Def.'s Ex. 2, at 1; Va. Code Ann. §
9.1-101 (2014). Although Lawhorn was not legally required to
obtain a prosecutor's signature in advance of applying
for misdemeanor warrants, the record shows that before
obtaining the misdemeanor warrants at issue she first
obtained her supervisor's approval of her findings and
then discussed the misdemeanor charges with a prosecutor.
Pl's Ex. G (Arledge Dep.), Exs. 8, 9. Lawhorn understood
that she received the prosecutor's approval to apply for
the misdemeanor warrants. Def.'s Ex. 44 (Lawhorn Dep.),
undisputed that when Patterson filed his individual federal
and Virginia income tax returns for 2007, 2008, 2009, and
2010, the returns misrepresented his income. As discussed in
Lawhorn's prosecution report and confirmed when Patterson
filed amended returns several months after being arrested on
the felony charges, he inaccurately reported his income for
all four years. Def.'s Exs. 1, 11. Patterson's
returns also took credit for deposits of employee withholding
taxes that in fact had not been deposited with the
Commonwealth. Def.'s Exs. 12, 13, 14, 15, 16, 17.
of her investigation, Lawhorn assembled numerous financial
records and summarized her findings in a prosecution package
in which she recommended that Patterson be prosecuted for
violations of Va. Code Ann. §§ 58.1-348 and
18.2-178 for the 2007, 2008, 2009, and 2010 tax
years. Def.'s Ex. 1. According to the
declaration of Lawhorn's supervisor, Rhonda McGarvey, she
reviewed Lawhorn's completed report, approved the
recommendation to file felony charges against Patterson, and
directed Lawhorn to contact the Office of the
Commonwealth's Attorney to obtain final approval.
McGarvey Decl. ¶ 11.
McGarvey's directions, Lawhorn contacted Assistant
Commonwealth's Attorney John Arledge
("Arledge"), and, according to Arledge's rough
daily logs, met with him for at least twelve minutes on
October 25, 2011. Def.'s Ex. 19 (Arledge Dep.), 25:2-4;
65:23-66:3. At the conclusion of the meeting, Arledge signed
the six criminal complaints, each of which included a
statement that he had given "[authorization prior to
issuance of [the] felony arrest warrant." Second Am.
Compl., Exs. 1-6, at 4. By signing the complaints, Arledge
authorized Lawhorn to swear out two criminal complaints for
Patterson's alleged violations of Va. Code Ann. §
18.2-178 for the tax years of 2007 and 2008 and four criminal
complaints for Patterson's alleged violations of Va. Code
Ann. § 58.1-348 for the tax years of 2007 through 2010.
Id. Lawhorn then appeared before state magistrate
Gary L. Talbot on October 25, 2011, and signed each of the
criminal complaints "[u]nder penalty of perjury ...
[and] sw[o]re or affirm[ed] that [Lawhorn] ha[d] reason to
believe that the Accused committed a criminal offense[,
]" and that "[t]he statements [made therein] [were]
true and accurate to the best of [her] knowledge and
belief." Id. Although none of the complaints
included a specific description of the facts supporting
probable cause, in her supplemental declaration in this
litigation, Lawhorn explained that she presented her felony
prosecution package and supporting evidence to magistrate
Talbot and answered his questions under oath. Def.'s
Rebuttal Ex. R5 (Lawhorn Decl.), ¶ 11. Magistrate Talbot
issued the six felony arrest warrants, Second Am Compl.,
Exs.1-6, and Officer J.T. Callahan executed the warrants and
arrested Patterson on October 27, 2011. Id.
contends and plaintiff disputes that the charges were
ultimately nolle prossed as a result of a settlement
agreement. Although the record shows that plaintiffs counsel
and Assistant Commonwealth's Attorneys communicated
during the ten months following Patterson's arrest, the
content of those communications is not in the record;
however, what is in the record is Arledge's sworn
testimony, in which he alludes to reaching an informal
agreement with Patterson that the felony charges would be
dismissed if Patterson filed amended tax returns and paid any
back taxes. Def.'s Rebuttal, Ex. R7 (Arledge Dep.), at
86:22-25 ("I know we made plea offers that had been
rejected. I thought there was something at some point if
they'll of [sic] file filings or pay the taxes, that the
charges will be dismissed."). On May 21 and 24, 2012,
plaintiff filed amended tax returns for 2007 through 2010,
and on June 19, 2012, the Commonwealth's Attorney
nolle prossed all of the pending felony charges.
Def.'s Ex. 22. The sequence of these events is consistent
with defendant's assertion that the felony charges were
resolved pursuant to a compromise. Arledge Dep. 56:2-6.
Moreover, in a June 22, 2012 email to Arledge,
Patterson's attorney described the history of the
relevant felony charges by stating that they were nolle
prossed "when we agreed that while he made mistakes
on his tax returns, he did not take any money."
Def.'s Rebuttal, Ex. R8.
undisputed that although plaintiffs church employed staff
throughout all quarters of 2008, 2009, and 2010, the church
neither filed Virginia's quarterly withholding forms
(VA-5 Forms) for its employees on or before the quarterly due
dates during those years, nor did it timely deposit any
payments of those employees' withholding taxes.
Def.'s Exs. 23-37. It is further undisputed that
Patterson was the only person authorized to deposit any
withheld funds.Def.'s Exs. 4, 5.
not until September 20, 2011, after the Department of
Taxation's investigation had begun, Def.'s Ex. 1, at
21, that Patterson presented the overdue VA-5 Forms for tax
years 2008 through 2010 to the Department of Taxation by
giving them to Lawhorn and Hawse during an interview-no
deposits of withheld funds accompanied these forms.
Def.'s Ex. 39. Along with the forms was a letter
plaintiff signed in which he acknowledged being responsible
for the church's withholding taxes. Lawhorn Dep. 72:5-11;
80:23-81:10; 82:18-83:1. Yet, it was not until March 7, 2012,
over five months after filing the late returns when Patterson
started depositing the overdue taxes. Pl's Ex. G (Arledge
Dep.), Exs. 8, 9. According to Lawhorn's prosecution
report, the amounts paid only covered the principal due and
did not include any payment of the outstanding penalties and
interest due for each delinquent quarter. Def.'s Ex. 41,
at 4. Lawhorn's report is supported by the checks signed
by Patterson, each of which show in their legends that each
payment was a "principal payment." Pl's Ex. E.
Moreover, interest and penalties aside, there is a
discrepancy in the record about whether there were still
outstanding principal balances owing as of June 2012. See
Def.'s Rebuttal, Ex. R15 (Notice of Delinquency issued by
the Department of Taxation on October 10, 2012 showing a
total balance owing of $957.82 for withholding taxes in 2009,
including $607 of principal); compare Pl's Ex.
G, Ex. 9 (containing a chart suggesting that all balances for
2009 and 2010 were paid as of June 14, 2012), with
Def.'s Ex. 41, at 5 (containing a chart updated on August
27, 2012 suggesting that a $607 balance remained owing for
2009 and 2010).
June 14, 2012, Lawhorn met with Arledge, who asked her about
the status of the delinquent withholding taxes. Lawhorn Dep.
28:1-19; 49:16-23. After Lawhorn explained that there was
still a balance outstanding, Arledge directed her to compile
a prosecution package to support charges against Patterson
for FBCS' failure to account for and pay withholding
taxes. Id. Lawhorn assembled a prosecution package
setting forth the findings of her investigation and obtained
her supervisor's approval to seek prosecution of
Patterson. Lawhorn Decl. ¶¶ 7, 8. Lawhorn then went
to Arledge to discuss whether misdemeanor or felony charges
should be filed against Patterson for failing to timely file
and pay withholding taxes. Def.'s Rebuttal, Ex. R13
(email from Lawhorn to Arledge referring to earlier
conversations about FBCS' delinquent withholding taxes
and inquiring about whether to bring misdemeanor or felony
charges against Patterson). Pursuant to Department of
Taxation policy, Arledge possessed the ultimate authority to
determine whether criminal charges should be filed and the
nature of those charges. Lawhorn Dep. 111:12-15. After
reviewing Lawhorn's prosecution package, Arledge directed
her to swear out misdemeanor complaints for any quarters for
the years 2009 and 2010 for which withholding balances were
Def.'s Rebuttal, Ex. R5 (Lawhorn Decl.), ¶ 15;
Arledge Dep. 25:2-13; Pl's Ex. C (Lawhorn Dep.), at
38:10-24; 189:22-190:7; Def.'s Rebuttal, Ex. R9 (Lawhorn
Dep.), at 179:5-10.
27, 2012, Lawhorn appeared before magistrate Gary R.
Wheelehan to swear out seven misdemeanor complaints, one for
each of the quarters at issue, specifically the second
through fourth quarters of 2009 and all four quarters of
2010. Def.'s Ex. 44 (Lawhorn Dep.), at 111:16-21. As she
did with the felony complaints, Lawhorn signed each of the
misdemeanor complaints "[u]nder penalty of perjury ...
[and] sw[o]re or affirm[ed] that [she] ha[d] reason to
believe that the Accused committed a criminal offense[,
]" and that "[t]he statements [made therein] [were]
true and accurate to the best of [her] knowledge and
belief." Second Am. Compl., Exs. 7-13, at 3. In her
deposition, Lawhorn explained that she presented her
prosecution package, which included the report and relevant
evidence, to the magistrate in support of the criminal
complaints. Lawhorn Dep. 109:19-110:23. There is no evidence
in the record that contradicts that statement.
misdemeanor warrants were not issued in compliance with an
amendment to the Rules of the Supreme Court of Virginia
issued on December 22, 2011, and made effective as of March
1, 2012. That amendment requires that all sworn statements of
facts supporting probable cause made by non-law enforcement
officers (such as Lawhorn) be reduced to writing. Va. Sup.
Ct. R. 3A:3. Although there are no written attachments to the
misdemeanor complaints, magistrate Wheelehan signed all of
them. Second Am. Compl., Exs. 7-13, at 2. There is no
evidence in the record that Lawhorn was aware of the
Lawhorn was not a law enforcement officer, she did not have
the authority to arrest Patterson. As a result, the warrants
were given to Prince William County Police Officer A.P.
Javid, who had the discretion to either arrest Patterson or
to permit him to appear by summons. Id. (stating
that execution by summons is permitted at officer's
discretion). Javid made the decision to arrest Patterson,
rather than to summon him to appear. Id.; Def.'s
Mem. 2. There is no evidence in the record indicating that
Lawhorn influenced Javid's decision. In the fall of 2012,
Arledge's successor met with Lawhorn, who provided him
with an update reflecting Patterson's recent payments
toward FBCS' withholding arrearages. Upon learning that
Patterson was making good on this debt, Arledge's
successor voiced his intention to nolle pross the
misdemeanor charges and leave the Department of Taxation to
pursue the civil penalties due on the remaining balance.
Lawhorn Dep. 54:12-24. On October 24, 2012, all of the
misdemeanor charges were nolle prossed, Def.'s
focuses much of her Motion for Summary Judgment on the
Eleventh Amendment, arguing that it bars plaintiffs action
for damages under § 1983. Def.'s Mem. 13. In
addition, Lawhorn contends that the evidence is insufficient
to support either the § 1983 or state malicious
prosecution claims, and finally, that qualified immunity
shields her from § 1983 liability because her actions
did not violate Patterson's clearly established
constitutional rights. Id. at 15, 21, 25.
Standard of Review
judgment is merited where the record demonstrates that
"there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). Although the court must
"resolve all factual disputes and any competing,
rational inferences in the light most favorable to the party
opposing that motion, " Id. (quoting
Wightman v. Springfield Terminal R v. Co., 100 F.3d
228, 230 (1st Cir. 1996) (internal quotation marks omitted)),
all inferences drawn in the nonmovant's favor must
"fall within the range of reasonable probability and not
be so tenuous as to amount to speculation or
conjecture." Thompson Everett. Inc. v. Nat'l
Cable Adver., L.P., 57 F.3d 1317, 1323 (4th Cir. 1995).
"[t]he mere existence of a scintilla of evidence in
support of the [opposing party's] position will be
insufficient" to defeat summary judgment. Anderson
v. Liberty Lobby. Inc., 477 U.S. 242, 252 (1986); see
also Am. Arms Int'l v. Herbert, 563 F.3d 78, 82
(4th Cir. 2009). Rather, a genuine issue of material fact
exists only "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party, "
Anderson, 477 U.S. at 248, and any existing factual
dispute must be both "material" and "genuine,
" such that it has the potential to "affect the
outcome of the suit under the governing law."
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.
Eleventh Amendment Sovereign Immunity
on the factors set down in Martin v. Wood, 772 F.3d
192, 195 (4th Cir. 2014), Lawhorn asserts that the Eleventh
Amendment bars this action for damages because even though
the complaint is pleaded against her in her individual
capacity, it is effectively brought against the Commonwealth.
Def.'s Mem. 13. In response, Patterson argues that the
Court already rejected the Eleventh Amendment argument, which
Lawhorn made in her Motion to Dismiss [Dkt. No. 27], and that
Lawhorn's contentions do not merit reconsideration under
Fed.R.Civ.P. 59(e). Pl's Opp'n 15. The Court finds
that Eleventh Amendment sovereign immunity does not shield
Lawhorn because the Martin factors are inapplicable
to § 1983 claims.
Eleventh Amendment provides that "[t]he judicial power
of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by citizens of another state, or by
citizens or subjects of any foreign state." U.S. Const,
amend. XI. "The Eleventh Amendment grants a State
immunity from suit in federal court... by its own citizens as
well." Lapides v. Bd. of Regents of Univ. Sys. of
Ga., 535 U.S. 613, 616 (2002) (citing Hans v.
Louisiana, 134 U.S. 1 (1890)). More specifically, the
Eleventh Amendment has been construed to bar damages actions
in federal court against a State or its officials in their
official capacity, "absent waiver by the State or valid
congressional override." Kentucky v. Graham,
473 U.S. 159, 169 (1985) (footnote and citation omitted).
"the Eleventh Amendment does not erect a barrier against
suits to impose 'individual and personal liability'
on state officials under § 1983." Hafer v.
Melo,502 U.S. 21, 30-31 (1991). In other words,
"the Eleventh Amendment provides no shield for a state
official confronted by a claim that he had deprived another
of a federal right under the color of state law, " id at
30 (quoting Scheuer v. Rhodes,416 U.S. 232, 237
(1974)), "nor are state officers absolutely immune from