UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WALTER CLINE; WILLIAM HAGLER,
Plaintiffs-Appellants,

v.

ARTHUR BINDER, in his official
capacity and individually as Deputy
Sheriff of Cumberland County,
North Carolina; MORRIS BEDSOLE, in
                                                                  No. 98-2433
his official capacity as former
sheriff of Cumberland County and
individually; JIMMY HENLEY; JOHN
DOE, in their official capacities and
individually; CUMBERLAND COUNTY,
NORTH CAROLINA, and the Office of
the Sheriff of Cumberland County,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-96-811-5-BO)

Argued: June 10, 1999

Decided: July 19, 1999

Before LUTTIG and KING, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part and remanded in part by unpublished per curiam
opinion.

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COUNSEL

ARGUED: Robert A. Dybing, SHUFORD, RUBIN & GIBNEY,
Richmond, Virginia, for Appellants. Douglas Edward Canders,
OFFICE OF THE COUNTY ATTORNEY, Fayetteville, North Caro-
lina; Bobby Grey Deaver, West Jefferson, North Carolina, for Appel-
lees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Walter Cline and William Hagler were arrested in Cumberland
County, North Carolina, for extortion, conspiracy to commit extor-
tion, violations of the Bail Bondsmen and Runners Act, N.C. Gen.
Stat. § 58-71-1 et seq., and for carrying concealed weapons. After the
district attorney dismissed all the charges, Cline and Hagler filed suit
pursuant to 42 U.S.C. § 1983 against Arthur Binder, both individually
and in his official capacity as Deputy Sheriff of Cumberland County,
and others,1 alleging violations of their Fourth and Fourteenth
Amendment rights under the Constitution of the United States, as well
as various state law claims.2 Concluding that the defendants were
entitled to qualified immunity on the § 1983 claims, the district court
granted summary judgment in favor of the defendants and dismissed
the plaintiffs' claims in their entirety.
_________________________________________________________________
1 The complaint also named as defendants Morris Bedsole, in his offi-
cial capacity as former Sheriff of Cumberland County and individually;
Jimmy Henley and John Doe, each in his official capacity and individu-
ally (collectively "Binder"); and Cumberland County, North Carolina and
the Office of the Sheriff of Cumberland County.
2 The state law claims included gross negligence, malicious prosecu-
tion, tortious interference with business relations, assault and battery, and
claims under the North Carolina Constitution.

                    2
Cline and Hagler appeal from the final judgment of the district
court, entered on May 5, 1998. As explained below, we affirm the
grant of summary judgment on all federal claims. As for the state
claims, we remand these to the district court so that it may determine
whether to exercise pendent jurisdiction over them.

I.

In April 1993, Cline, a bail bondsman, posted a $10,000 secured
bond for the appearance of Marcus Acosta in a criminal case in Cum-
berland County, North Carolina. Acosta failed to appear in court as
required. As a result, Acosta's bond was ordered forfeited and an
order for his arrest was issued.

Cline hired Hagler, a private investigator, to help him find Acosta.
After discovering that Acosta was in Puerto Rico, Cline and Hagler
flew to Puerto Rico in September 1993, where they arrested Acosta
and brought him back to Cumberland County.3

Rather than returning Acosta to the County authorities as required,
they kept him in their custody. Cline, Hagler, and Acosta, who was
shackled and handcuffed, appeared at the home of Ernesto Sanchez
at approximately 1:00 a.m. on September 23, 1993. According to San-
chez -- who was purportedly involved in drug dealings with Acosta
-- Hagler told him that if Sanchez did not give them $10,000, they
would turn over to the police certain tape recordings they claim they
had made of telephone conversations between Sanchez and Acosta
while Acosta was in Puerto Rico -- evidence that Sanchez knew of
Acosta's whereabouts while he was a fugitive from justice. Sanchez
also said that Cline and Hagler told him that they would release
Acosta and permit him to return to Puerto Rico when Sanchez gave
them $10,000. Sanchez gave Hagler $900, and told them he would
give them the balance the next day.

In the morning of September 23, Sanchez contacted his attorney
and reported that he believed he was being extorted. 4 His attorney
_________________________________________________________________
3 Cline possessed the authority to arrest Acosta for the purpose of sur-
rendering him to the court. See N.C. Gen. Stat. § 58-71-30 (1993).
4 The crime of extortion in North Carolina is defined as follows:

          Any person who threatens or communicates a threat or threats to

                    3
then took Sanchez to the District Attorney and the Cumberland Coun-
ty's Sheriff's Department ("CCSD"), which began an investigation.
Because Sanchez resided in Harnett County, the CCSD sought assis-
tance from the North Carolina State Bureau of Investigation ("SBI")
and the Harnett County Sheriff's Department ("HCSD"). After San-
chez was interviewed, he was given a tape recorder by the officers
and instructed to record any telephone calls he received from Acosta,
Cline, or Hagler.

Sanchez did as requested, and altogether recorded six telephone
conversations, between himself and Acosta or Hagler, which con-
firmed Sanchez's story regarding the extortion scheme.5 At the direc-
tion of the investigating officers, a meeting was set up between
Sanchez and Hagler at the Ambassador Motel in Fayetteville, North
Carolina, on September 24, 1993. The SBI supplied Sanchez with
$5000 to be used to consummate the arrangement. Sanchez, cooperat-
ing with the officers, wore a microphone, and the investigating offi-
cers waited in an adjacent motel room. Sanchez paged Hagler after
Sanchez arrived at his room. Hagler called Sanchez back and they
arranged to meet at the motel, where Hagler would turn over the tapes
and Acosta in exchange for $10,000 in cash.

At about 6:15 p.m. that evening, Hagler showed up at the motel
room with Bill Newton, a bailbondsman runner for Walter Cline, but
without Acosta or the tapes. Sanchez demanded that Hagler produce
Acosta. Hagler left, but Bill Newton stayed behind with Sanchez. At
approximately 6:45 p.m., Hagler returned with three tapes (of music,
not of previously taped conversations between Sanchez and Acosta)
he had obtained from Cline at his office, and Cline showed up with
Acosta a few moments later. Hagler and Cline took Acosta, in leg
shackles, into the motel room. Sanchez gave Hagler the $5000 sup-
_________________________________________________________________
          another with the intention thereby wrongfully to obtain anything
          of value or any acquittance, advantage, or immunity is guilty of
          extortion and such person shall be punished as a Class F felon.

N.C. Gen. Stat. § 14-118.4 (1993).

5 The transcripts of the recorded conversations were made exhibits to
Sanchez's deposition by Cline's counsel.

                    4
plied to him by the SBI, and told him that the rest was in his car. As
Sanchez and Hagler exited the motel room to go to Sanchez's car --
a prearranged signal with the police that the deal had been made --
the officers entered the room and arrested Cline, Acosta, and Newton.6
Hagler and Robert Helms, Cline's son-in-law who was waiting out-
side in a car, were also arrested. Warrants were issued by a magistrate
judge following the arrests. The district attorney, exercising his pro-
secutorial discretion, subsequently dismissed all the charges against
Cline and Hagler.

II.

We review a district court's grant of summary judgment de novo.
Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1994). Sum-
mary judgment is appropriate if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56.

The gravamen of Cline and Hagler's complaint is that Binder --
the principal investigator -- and the other defendants lacked probable
cause to arrest them, thereby violating their rights under the Fourth
Amendment. The district court concluded that probable cause existed
and thus Cline and Hagler's federal constitutional rights had not been
violated. Accordingly, the district court held that the defendants were
entitled to qualified immunity, and granted their motion for summary
judgment.

Qualified immunity under § 1983 shields government officials per-
forming discretionary functions from civil liability to the extent that
their conduct "does not violate clearly established statutory or consti-
tutional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A court assessing a
claim of qualified immunity "must first determine whether the plain-
tiff has alleged the deprivation of an actual constitutional right at all,
and if so, proceed to determine whether that right was clearly estab-
lished at the time of the alleged violation." Wilson v. Layne, 119 S.
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6 Certain content contained in the taped conversations between Sanchez
and Acosta led the police officers and investigators to believe that Acosta
was a willing participant in the extortion, rather than a victim.

                    5
Ct. 1692, 1697 (1999) (quoting Conn v. Gabbert , 119 S. Ct. 1292,
1295 (1999)). If the violation of a constitutional right is properly
alleged, a court must then decide whether this right was clearly estab-
lished at the time of the alleged violation -- here, the arrest. The
Supreme Court has instructed that the constitutional question should
be addressed before the qualified immunity question. Id. We thus first
consider the Fourth Amendment question.

Probable cause to justify an arrest arises when"facts and circum-
stances within the officer's knowledge . . . are sufficient to warrant
a prudent person, or one of reasonable caution, in believing, in the cir-
cumstances shown, that the suspect has committed, is committing, or
is about to commit an offense." Porterfield v. Lott, 156 F.3d 563, 569
(4th Cir. 1998) (quoting Michigan v. DeFillippo , 443 U.S. 31, 37
(1979)). In assessing the existence of probable cause, "courts examine
the totality of the circumstances known to the officer at the time of
the arrest." Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996) (cita-
tion omitted). "Probable cause must be supported by more than a
mere suspicion, but evidence sufficient to convict is not required."
Id.

Cline and Hagler contend that the officers lacked probable cause
to arrest them, because the officers should never have credited the
information provided by Sanchez -- a convicted felon facing charges
for falsely incriminating another. They argue unpersuasively that they
were only trying to help Acosta get $10,000 to again bond himself out
of custody. Even assuming arguendo that this far-fetched theory were
true, the probable cause inquiry depends not on the possible motiva-
tions of Cline and Hagler, but rather on the reasonableness of the offi-
cers' beliefs -- in light of the facts within their knowledge at the time
of the arrests -- that the suspects had committed, or were about to
commit a crime. See Porterfield, 156 F.3d at 569.

The appellants ignore the compelling fact that the police possessed
tapes of incriminating telephone conversations that fully supported
Sanchez's account that he was being extorted.7 In one of the taped
_________________________________________________________________
7 Despite appellants' argument to the contrary, the fact that Cline was
not recorded on the tapes does not vitiate the existence of probable cause
to arrest him. The totality of circumstances known to Binder and the
other defendants at the time of Cline's arrest was certainly sufficient to

                     6
phone calls with Hagler, Sanchez asked him if the $900 that Hagler
"took from [him]" was to be included in the $10,000 he was supposed
to give them to secure the tapes and Acosta's release. Hagler
responded that it wasn't -- the $900 was for expenses incurred for the
trip to Puerto Rico to capture Acosta. The taped conversations also
indicate that Sanchez would give the $10,000 to Hagler and Cline --
and not to Acosta. In addition, Hagler told Sanchez that the informa-
tion on the alleged tapes of conversations between Sanchez and
Acosta -- made while Acosta was in hiding in Puerto Rico -- would
"hurt [him] a great deal."

All of these facts were fully known to Binder at the time of Cline
and Hagler's arrest. Cline and Hagler have failed to raise a genuine
issue of material fact regarding the officer's conduct that would pre-
clude summary judgment. See Bonner v. Anderson , 81 F.3d 472, 476
(4th Cir. 1996) (citation omitted).

The district court properly concluded that there was probable cause
to arrest Cline and Hagler and that they thus failed to establish a con-
stitutional violation -- a necessary predicate for§ 1983 liability.
Accordingly, Binder and the other defendants were entitled to quali-
fied immunity in their individual capacities against Cline and
Hagler's § 1983 claims.

III.

As for Cline and Hagler's official-capacity claims, such claims
"generally represent only another way of pleading an action against
an entity of which an officer is an agent." Kentucky v. Graham, 473
U.S. 159, 166 (1985) (quoting Monell v. New York City Dep't of
Social Servs., 416 U.S. 232, 237-38 (1974)). A governmental entity
is liable under § 1983, however, only when the entity's "policy or
_________________________________________________________________

establish probable cause as to his arrest. See Taylor, 81 F.3d at 434. Not
only had Cline hired Hagler for the purpose of finding Acosta, but Cline
went with Hagler and Acosta to Sanchez's house to demand $10,000,
and was present when Hagler received $900 from Sanchez. And Cline,
of course, showed up at the motel with the shackled and handcuffed
Acosta for the deal and was arrested while counting the money Sanchez
had given them.

                     7
custom" played a part in the deprivation of a federal right. Graham,
473 U.S. at 166. Of course, before a governmental entity -- here the
Cumberland County Sheriff's Department -- can be found liable
under § 1983, there must be a deprivation of a federal right. See id.;
Hinkle v. City of Clarksburg, 81 F.3d 416, 420 (4th Cir. 1996).
Because the officers had probable cause to arrest the plaintiffs, Cline
and Hagler's constitutional rights were not violated, and thus their
official-capacity claims must also fail.8

IV.

In their Complaint, Cline and Hagler also asserted a number of
state law claims. The district court failed to address the state law
claims and dismissed all the claims "in their entirety" without specify-
ing whether the dismissal was to be with prejudice or without preju-
dice. Because it would have been error to dismiss the state law claims
with prejudice without having first exercised pendent jurisdiction and
considered their merits, we believe that the district court intended to
decline to exercise pendent jurisdiction over the state claims and to
dismiss them without prejudice. See United Mine Workers v. Gibbs,
383 U.S. 715, 726-27 (1966) (dismissal without prejudice of state
claims is proper when district court declines to exercise pendent juris-
diction); Edelstein v. Wilentz, 812 F.2d 128, 134 (3d Cir. 1987) (not-
ing that dismissal of state claims for lack of jurisdiction must be
without prejudice). We remand the state law claims to the district
court, however, for clarification of their disposition.

For the reasons stated above, we affirm the district court's grant of
summary judgment to the defendants on all federal claims and remand
for consideration and appropriate disposition of the state law claims.9

AFFIRMED IN PART AND REMANDED IN PART
_________________________________________________________________
8 Municipal liability is not an issue in this appeal.

9 The appellees have requested this court to rule on a motion to strike
certain expert testimony offered by the appellants, which the district
court apparently did not consider below. Because we affirm the grant of
summary judgment in favor of the appellees, this issue is moot.

                    8
