Argued: March 21, 2017
from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:15-cv-00467-TSE-TCB)
M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria,
Virginia, for Appellants.
Alexander Francuzenko, COOK CRAIG & FRANCUZENKO PLLC,
Fairfax, Virginia; Julia Bougie Judkins, BANCROFT, MCGAVIN,
HORVATH & JUDKINS, PC, Fairfax, Virginia, for Appellees.
Maxwelle C. Sokol, VICTOR M. GLASBERG & ASSOCIATES,
Alexandria, Virginia, for Appellants.
Broderick C. Dunn, Philip C. Krone, COOK CRAIG &
FRANCUZENKO PLLC, Fairfax, Virginia, for Appellee Lisa Tingle
WILKINSON, DIAZ, and FLOYD, Circuit Judges.
WILKINSON, Circuit Judge:
Jan Eshow and Fadwa Safar were arrested, and Safar briefly
incarcerated, for an allegation of fraud that was mistakenly
reported and almost immediately retracted. They brought suit
under 42 U.S.C. § 1983 and state tort law against the
police officer and prosecutor who, at different stages of the
criminal process, learned that no crime had occurred and yet
failed to take steps to withdraw an arrest warrant. For the
reasons that follow, we affirm the grants of immunity to the
police officer and prosecutor on the § 1983 claims. As
to the state law claims, however, we remand with instructions
to dismiss the claims without prejudice to plaintiffs'
right to proceed in state court.
case is an appeal from a Rule 12(b)(6) dismissal, which
requires us to "accept as true all of the factual
allegations contained in the complaint." Owens v.
Baltimore City State's Attorneys Office, 767 F.3d
379, 388 (4th Cir. 2014). To survive a motion to dismiss, the
complaint must state a "plausible claim for relief"
that "permit[s] the court to infer more than the mere
possibility of misconduct." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
began as a simple exercise in bargain shopping took an
unfortunate turn. Plaintiffs Eshow and Safar are married
residents of Alexandria, Virginia. In September 2012, Eshow
purchased around $1, 000 of home flooring from Costco in
Pentagon City, Virginia. Shortly thereafter, while browsing
another Costco store, he saw that the same flooring was on
sale. After learning that he could take advantage of the sale
price at the store of purchase, on October 17, 2012 Eshow
returned to the Pentagon City Costco to get the discount.
Store personnel explained that he should purchase the
identical flooring at the current markdown and then
immediately return it, using his initial sales receipt as the
basis for the refund. Eshow followed these instructions and
obtained a refund on the joint account he shared with Safar.
hours later, Costco called the Arlington County Police
Department to report-mistakenly-that Eshow and Safar had
fraudulently secured a refund on goods they never purchased.
Officer Stephanie Rodriguez, along with another colleague,
responded to the report and reviewed a video showing Eshow
seeking the refund. Rodriguez filed an affidavit requesting
arrest warrants for both plaintiffs, and a magistrate judge
issued the warrants.
next day, Costco representatives contacted Rodriguez and
notified her that the allegations against Eshow and Safar
were unfounded-no fraud had in fact occurred. Rodriguez did
not take any steps to correct her affidavit or withdraw the
months went by without incident until Eshow was pulled over
for speeding in Fairfax County, Virginia. Based on the
outstanding arrest warrant, the police officers handcuffed
Eshow in front of his family and placed him under arrest. On
July 31, 2013, Eshow appeared before the Arlington County
General District Court to contest the fraud charge. At the
hearing, a Costco representative explained to Rodriguez and
Lisa Tingle, the assistant commonwealth's attorney, that
the charge was erroneous and should be dropped. Tingle moved
for nolle prosequi and the court dismissed the case
Rodriguez's investigative notes and Tingle's case
file indicated that identical charges were pending against
Safar, but neither took any action to withdraw her arrest
warrant. Rodriguez and Tingle had previously been trained in
the standard procedures for withdrawing warrants from
statewide law enforcement databases. In particular, "an
attorney for the Commonwealth may at any time move for the
dismissal and destruction of any unexecuted warrant or
summons issued by a magistrate." Va. Code Ann. §
19.2-76.1 (West 2011).
2013, Eshow and Safar applied for American citizenship. After
passing her citizenship test, Safar turned to the next
requirement and sought clearance letters from local police in
counties where she previously resided. On December 23, 2013,
Safar reported to the police headquarters in Prince
George's County, Maryland to get a clearance letter. Upon
reviewing her file, an officer informed her that she was
under arrest pursuant to an active warrant. Safar was
incarcerated in Maryland, and a magistrate advised her that a
transfer to Arlington, Virginia could not be arranged until
the county judges returned from the holiday.
of the incarceration process, Safar was strip searched and
inspected for smuggled contraband. She was the primary
caregiver for three young children at the time and was denied
the opportunity to use a breast pump. Safar remained in jail
for three days until December 26, 2013, when she was
transferred to Arlington, Virginia and released. The
following day the case against her was dismissed nolle
prosequi by a different assistant commonwealth's
filed a complaint against Rodriguez and Tingle in federal
district court. Eshow and Safar asserted claims of
unconstitutional arrest under § 1983. They also alleged,
according to Virginia tort law, that the failure to withdraw
Safar's arrest warrant was grossly negligent.
and Tingle moved to dismiss all claims, and on April 4, 2016
the district court granted their motions. First, the district
court rejected plaintiffs' § 1983 claims against
Rodriguez. Neither the Fourth Amendment nor the Due Process
Clause provided a basis for relief, the court reasoned, and
Rodriguez was entitled to qualified immunity in any event.
Turning to the § 1983 claim against Tingle, the court
found that she was shielded by absolute prosecutorial
immunity. Finally, the court held that plaintiffs failed to
state a claim for gross negligence under Virginia law. This
bulk of plaintiffs' complaint alleges claims under §
1983. Section 1983, of course, is not an independent source
of substantive rights, but simply a vehicle for vindicating
preexisting constitutional and statutory rights. See
Graham v. Connor, 490 U.S. 386, 393-94 (1989). The first
step in any such claim is to pinpoint the specific right that
has been infringed. See Baker v. McCollan, 443 U.S.
137, 140 (1979).
contend that Rodriguez's and Tingle's failure to
withdraw the arrest warrants after learning that the charges
were erroneous constituted an unconstitutional arrest. They
assert that the alleged omissions breach two constitutional
guarantees: the Fourth Amendment and the Fourteenth
Amendment's Due Process Clause.
initial matter, we are mindful of the Supreme Court's
injunction that the Due Process Clause is not the proper lens
through which to evaluate law enforcement's pretrial
missteps. Compared to the "more generalized notion"
of due process, the Fourth Amendment "provides an
explicit textual source of constitutional protection against
[unreasonable seizures and arrests], " Graham,
490 U.S. at 395, and "define[s] the 'process that is
due' for seizures of persons or property in criminal
cases, " Gerstein v. Pugh, 420 U.S. 103, 125
n.27 (1975). Consequently, a police officer who withholds
exculpatory information does not violate the Fourteenth
Amendment unless the officer's failure to disclose
deprived the plaintiff of the "right to a fair
trial." Taylor v. Waters, 81 F.3d 429, 436 n.5
(4th Cir. 1996). Further, insofar as plaintiffs' claims
sound in generic negligence, the Due Process Clause "is
simply not implicated" by acts of official carelessness.
Daniels v. Williams, 474 U.S. 327, 328 (1986). The
Fourth Amendment, then, is the only actionable ground for
identified the constitutional right at issue, we now turn to
the precise scope of the Fourth Amendment guarantee and