UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division

JOHN P. MCSHEFFREY, Plaintiff, v. Action No. 2:21cv630 LILY I. WILDER, in her individual and official capacity, Defendant.

OPINION AND ORDER This matter is before the Court on the motions for summary judgment filed by pro se plaintiff John McSheffrey and defendant Lily Wilder. ECF Nos. 212, 217. McSheffrey alleges Assistant Commonwealth’s Attorney Wilder violated his Fourth Amendment rights by maliciously prosecuting him for rape without probable cause pursuant to a false indictment. Wilder asserts she conducted her prosecution based on information provided by the police detective, the victim, and the victim’s mother, and that an indictment was returned by the grand jury. For the following reasons, McSheffrey’s motion for summary judgment is DENIED, and Wilder’s motion for summary judgment is GRANTED. I. PROCEDURAL HISTORY McSheffrey filed a third amended pro se complaint on July 14, 2023, alleging Wilder conspired with Ryan Davis, Kimberly Wood, and Brent Johnson to unlawfully arrest, falsely imprison, and maliciously prosecute him in violation of his Fourth Amendment rights. ECF No. 143 (‘Compl.”). The Court granted motions to dismiss filed by Davis, Wood, and Johnson, and

the motion to dismiss the official capacity claim and claim for declaratory relief filed against Wilder. ECF No. 205. The remaining claim is one for malicious prosecution against Wilder in her personal capacity. McSheffrey moved for summary judgment on March 4, 2024, to which Wilder responded and McSheffrey replied. ECF Nos. 212, 215,221. Wilder moved for summary judgment on March 22, 2204, to which McSheffrey responded. ECF Nos. 217, 224. No reply has been filed and the time for replying has expired. II, UNDISPUTED FACTUAL BACKGROUND On July 12, 2020, Jane Doe made a statement to Detective Siegel with the Norfolk police claiming that McSheffrey had sexually assaulted and raped her. Compl. 8; ECF No. 143-1, at 2-6. On July 22, 2020, Detective Siegel emailed defendant Wilder a police report regarding his investigation. Compl. 99; ECF No. 143-1. Detective Siegel included a recording of his interview of Jane Doe, McSheffrey’s criminal history, McSheffrey’s written statement', and screenshots McSheffrey provided of text messages with Jane Doe. Compl. 7 9; ECF No. 143-1, at 2- 16. Wilder met with Jane Doe’s mother on November 16, 2020, who told Wilder that McSheffrey raped Jane Doe and that Jane Doe was 16 years old. Compl. { 12. Wilder contacted her supervisor on December 17, 2020, and “thoroughly went over the case evidence.” Jd. Jf 7, 19. Her supervisor emailed Wilder the same day stating, I reluctantly approved your DI review for indictment. I am sure you realize you have very little chance of success in this case. Please, pre-trial, meet with Krista and go over every angle. I have see[n] Krista make magic before. Id. § 21; ECF No. 143-5, at 2. Wilder responded to the email on December 18, 2020,

' In his written statement, McSheffrey explains that Jane Doe consented to have intercourse with him after he paid her and that she was working with the police to entrap him for statutory rape. Compl. {9 n.1; ECF No. 143-1, at 7.

I hate to admit this but when I scheduled my first meeting with the victim, I had practically made up my mind that I was NOT going to charge this man... However, [Jane Doe] truly is very credible and I truly believe that she was raped. I left the meeting with a gut feeling knowing that I had to convince my supervisors to let me charge this man. So thank you for trusting my judgement. I have talked to Krista about this case and will continue to seek her advice as the trial process continues. I also have spoken with the victim and her mom in GREAT lengths that this will not be an easy case to prove and that there is a good chance that we will lose however, they are both willing and wanting to fight. Compl. § 22; ECF No. 143-5. The Circuit Court for the City of Norfolk produced the court’s grand jury record for McSheffrey’s case, including the grand jury indictment signed by the grand jury foreperson on January 6, 2021. ECF No. 212-1, at 3. The style of the indictment indicates it is for “Intercourse with Spouse by Force, Threat, etc.” Jd. The body of the indictment, however, states, The Grand Jury charges that: On or between March 17, 2020 and March 31, 2020, in the City of Norfolk, John Patrick McSheffrey feloniously did commit rape by having sexual intercourse with A.T.,” when such act was accomplished against the victim’s will, by force, threat or intimidation of or against the victim. Va. Code § 18.2-61. Id. Based on this indictment, a capias was issued for McSheffrey’s arrest. ECF No. 212-1, at 4. McSheffrey was arrested on January 12, 2021, and he was released on bond on January 20, 2021. Compl. {ff 37-38, 41. After McSheffrey filed this civil action against Wilder, Special Prosecutor Paul Powers took over the prosecution of McSheffrey’s criminal case. Compl. ff] 44-45. On February 27, 2023, the state court granted Powers’ motion to nolle prosequi McSheffrey’s case following

2 The Court will refer to A.T. as Jane Doe.

Powers’ statement, “we aren’t able to find a witness, a former detective, who is a necessary witness at the time. We tried to serve him, contact him in every way possible, so we don’t believe we could get a conviction without him.” Jd. 55-57; ECF No. 143-17, at 4. Il. LEGAL STANDARD Federal Rule of Civil Procedure 56(a) provides that a district court will grant summary judgment for a movant if such party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The existence of some alleged factual dispute “will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986). “A genuine question of material fact exists where, after reviewing the record as a whole, a court finds that a reasonable jury could return a verdict for the nonmoving party.” Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012). Although the moving party initially bears the burden on summary judgment, once a movant properly files evidence supporting summary judgment, the nonmoving party may not rest on the mere allegations of the pleadings, but must set forth specific facts in the form of exhibits and sworn statements illustrating a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). “Because ‘[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge,’” the Court must only evaluate the evidence as needed to determine whether there is “sufficient disagreement to require submission to a jury or whether [the evidence] is so one-sided that one party must prevail as a matter of law.’” McAirlaids, Inc. v. Kimberly-Clark Corp., 756 F.3d 307, 310 (4th Cir. 2014) (quoting Anderson, 477 U.S, at 251-52, 255). In making its determination, “the district court must

‘view the evidence in the light most favorable to the’ nonmoving party.” Jacobs v. N.C. Admin. Off, of the Courts, 780 F.3d 562, 568 (4th Cir. 2015) (quoting Tolan v. Cotton, 572 U.S. 650, 657 (2014)). IV. DISCUSSION A. Malicious prosecution in violation of the Fourth Amendment. McSheffrey alleges Wilder procured or created a false indictment against him in violation of his Fourth Amendment right “to be seized only upon sanctioned probable cause,” and references that he was wrongfully arrested and imprisoned. Compl. [{ 61, 66. McSheffrey asserts two alternative sets of facts: (1) Wilder directed Davis to give false testimony to the grand jurors to obtain the false indictment; or (2) Wilder conspired with Wood to create an indictment that was never issued by the grand jury. Compl. 66-69.? McSheffrey’s claim is based on the allegedly false indictment resulting in his arrest, and his claim sounds in malicious prosecution. See ECF Nos. 143-14, at 2; 143-15, at 2; see also Brooks v. City of Winston-Salem, 85 F.3d 178, 181-83 (4th Cir. 1996) (holding a claim for false arrest is based on a warrantless arrest or imprisonment not supported by probable cause, while a claim for malicious prosecution alleges that an arrest was made pursuant to a warrant that was not supported by probable cause). Malicious prosecution claims under the Fourth Amendment require a plaintiff to “show that (1) the defendant seized him pursuant to legal process but without probable cause and (2) the criminal proceedings terminated in the plaintiffs favor.” Thurston v. Frye, 99 F.4th 665, 673 (4th Cir. 2024) (citing Massey v. Ojaniit, 759 F.3d 343, 356 (4th Cir. 2014)). There is no dispute

3 In his response to Wilder’s motion for summary judgment, McSheffrey states, “[t]he Plaintiff in fact, abandons the theory that Detective Davis falsely testified to the Grand Jury because the Court granted a subpoena duces tecum for grand jury minutes, and no records were found to support Wilder’s Direct Indictment.” ECF No. 224, at 3. Because the complaint has not been amended, the Court will address both of McSheffrey’s theories.

that McSheffrey was arrested and criminal proceedings terminated in his favor with the entry of a nolle prosequi order. See Bennett v. R & L Carriers Shared Servs., LLC, 492 F. App’x 315, 333 (4th Cir. 2012) (citing Graves v. Scott, 51 S.E. 821, 823 (Va. 1905) (finding that generally, in Virginia, a nolle prosequi order is sufficient evidence that the prosecution has been terminated in the defendant’s favor)). The issue is whether probable cause existed for McSheffrey’s arrest. “Probable cause has long been understood to encompass circumstances that, while less than a preponderance, ‘warrant suspicion.’” Thurston, 99 F.4th at 673-74 (quoting Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813)). “Whether circumstances ‘warrant suspicion’ turns on the combination of two factors: the suspect’s conduct as known to the officer and the nature of the offense.” /d. An arrest is backed by probable cause when “the facts known to the officer could make a prudent officer believe that the suspect’s conduct satisfies the elements of a criminal violation.” Jd. (citing Hupp v. Cook, 931 F.3d 307, 318 (4th Cir. 2019)).

smoked marijuana at the time of the encounter (Jane Doe indicated marijuana was offered to her and alcohol was provided to her by McSheffrey, while McSheffrey asserts Jane Doe told him she had been drinking and smoking weed and he smelled alcohol on her); (3) Jane Doe stated that she said “no” multiple times when McSheffrey tried to kiss her and get on top of her, although McSheffrey stated the encounter was consensual; (4) McSheffrey had sexual intercourse with Jane Doe after she asked him to put on a condom; and (5) McSheffrey paid Jane Doe $50.00. ECF No. 143-1, at 4, 7. These known facts could make a prudent person “believe that the suspect’s conduct satisfies the elements of a criminal violation.” Thurston, 99 F 4th at 674 (citing Hupp, 931 F.3d at 318). The Court “remain[s] mindful of the Supreme Court’s admonition that ‘in a doubtful or marginal case a [seizure] under a warrant may be sustainable where without one it would Id, (quoting United States v. Leon, 468 U.S. 897, 914 (1984)).° The Court finds that the undisputed record supports a finding of probable cause for McSheffrey’s indictment and ensuing arrest.? Accordingly, McSheffrey’s malicious prosecution claim against Wilder fails and Wilder’s motion for summary judgment is GRANTED.

8 The Fourth Circuit has ruled that, in malicious prosecution cases, “[p]robable cause need not be tailored to the offense the arresting official suspected at the time of arrest. Rather, probable cause exists when ‘the officer had probable cause to arrest for any offense, not just the offense cited at the time of arrest or booking.’” Thurston, 99 F.4th at 674 n.4 (citing District of Columbia v. Wesby, 583 U.S. 48, 54 n.2 (2018)). As a result, the Court can assess probable cause “in relation to any crime identified by the parties in the case, even one identified only during litigation.” Jd. (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). Jane Doe was a minor under the age of 18 years old and McSheffrey was 52 years old at the time they had sexual intercourse. ECF No. 38, 15, 25; ECF No. 143-1, at 7. Accordingly, probable cause also existed to arrest McSheffrey for statutory rape. See Va. Code Ann. § 18.2-371. Wilder argues that she is entitled to prosecutorial immunity. ECF No. 217, at 56. Because the Court finds probable cause for McSheffrey’s indictment and arrest, this argument will not be addressed.

V. CONCLUSION For these reasons, McSheffrey’s motion for summary judgment, ECF No. 212, is DENIED, Wilder’s motion for summary judgment, ECF No. 217, is GRANTED, and McSheffrey’s third amended complaint is DISMISSED WITH PREJUDICE. McSheffrey may appeal from this dismissal order by forwarding a written notice of appeal to the Clerk of the United States District Court, Norfolk Division, 600 Granby Street, Norfolk, Virginia 23510. The written notice must be received by the Clerk within 30 days from the date of the entry of this dismissal order. The Clerk is DIRECTED to send a copy of this dismissal order to McSheffrey and counsel for defendant. ait Krask United States Magistrate Judge

Norfolk, Virginia May 30,2024