                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 08-1839


JAMES ROBERTSON; JERRY MARCUM; LANDON HATFIELD; ROBERT LEE
EVANS; SHAWN CHRISTOPHER COOK; WILLIAM LUCAS; SHANNON
HATFIELD,

                 Plaintiffs - Appellees,

           and

SOFIA ROBERTSON,

                 Plaintiff,

           v.

TODD ELLIOTT, in his individual and official capacity as a
police officer for the Wayne County Sheriff’s Department;
DAVE PENNINGTON, in his official capacity as the Sheriff of
Wayne County,

                 Defendants – Appellants,

           and

REX VARNEY, in his individual and official capacity as lead
investigator for the Wayne County Sheriff’s Department,

                 Defendant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.    Robert C. Chambers,
District Judge.    (3:05-cv-00777; 3:06-cv-00374; 3:06-cv-00375;
3:06-cv-00377; 3:06-cv-00378; 3:06-cv-00379; 3:06-cv-00376)


Argued:   January 28, 2009                  Decided:   March 6, 2009
Before NIEMEYER and MICHAEL, Circuit Judges, and Arthur           L.
ALARCÓN, Senior Circuit Judge of the United States Court          of
Appeals for the Ninth Circuit, sitting by designation.


Reversed and remanded by unpublished per curiam opinion.


ARGUED: Jason Eric Wandling, SHUMAN, MCCUSKEY & SLICER,
P.L.L.C., Charleston, West Virginia, for Appellants.        Lonnie
Carl   Simmons,    DITRAPANO,  BARRETT   &   DIPIERO,    P.L.L.C.,
Charleston, West Virginia, for Appellees.     ON BRIEF: John F.
McCuskey, Dwayne E. Cyrus, SHUMAN, MCCUSKEY & SLICER, P.L.L.C.,
Charleston,   West   Virginia,  for  Appellants.      Heather   M.
Langeland, DITRAPANO, BARRETT & DIPIERO, P.L.L.C., Charleston,
West Virginia; Roger D. Forman, Jason E. Huber, Jonathan L.
Matthews, FORMAN & HUBER, L.C., Charleston, West Virginia, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

           The seven plaintiffs in this case were arrested and

indicted on drug charges in Wayne County, West Virginia, on the

basis of evidence fabricated by a confidential informant.                     The

plaintiffs sued the Wayne County Sheriff’s Department, Sheriff

David Pennington, and Chief Field Deputy (Chief Deputy) Todd

Elliott, asserting claims under 42 U.S.C. § 1983 and state law.

Sheriff Pennington and Chief Deputy Elliot were sued in both

their individual and official capacities.                The Sheriff and the

Chief Deputy appeal the district court’s denial of their motion

for summary judgment based on qualified immunity.                  We reverse,

concluding that these two defendants are entitled to qualified

immunity   on   the   § 1983   claims       brought   against   them   in   their

individual capacities.



                                     I.

           We take the facts as assumed by the district court,

which considered the record in the light most favorable to the

non-moving parties (here, the plaintiffs).              Rogers v. Pendleton,

249 F.3d 279, 285 n.2 (4th Cir. 2001).                  Wayne County deputy

sheriffs arrested Thomas Osborne in Fort Gay, West Virginia, on

May 9, 2003, for writing worthless checks.                 Immediately after

his   arrest,   Osborne    offered      to     assist   law     enforcement   by

participating in drug transactions as a confidential informant.

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The arresting deputies contacted Chief Deputy Elliott, who in

turn    contacted      Sheriff       Pennington,          for     authorization        to       use

Osborne as a confidential informant.                       With Sheriff Pennington’s

approval, Chief Deputy Elliot took Osborne to a local sports bar

to make two controlled drug purchases (or “drug buys”) that same

night.        Forensic       laboratory        results       conducted        months       later

confirmed      the    presence       of   cocaine           and      Hydrocodone      in        the

substances that Osborne purchased in those initial transactions.

              Following      these     initial        transactions,           Chief    Deputy

Elliot and other Wayne County deputies asked Osborne to assist

in     approximately         thirty-one            additional         drug    buys         as    a

confidential         informant.           In        order       to     profit      from         the

arrangement, Osborne faked many of the purchases.                                 Prior to a

transaction he would hide a baking soda mixture in a baggie in a

compartment cut in the sole of one of his sandals.                                   He would

then approach an individual (whom he typically chose at random)

and act as though he was purchasing drugs.                            Before returning to

the police, he would replace the baking soda mixture in his shoe

with the cash he received from the deputies.                                 He would then

deliver    the   baking       soda    mixture        to     the      deputies.        In    some

instances      Osborne       recorded     fake        conversations          in    which         he

changed his voice to imitate the individuals he implicated and

gave those recordings to the deputies.                       Osborne used the cash he

kept   from    the    fake    purchases        to    buy     OxyContin,       a   controlled

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substance.     The district court recounted how the deputies dealt

with Osborne and what the consequences of his fabrications were:

     Although Deputy Elliot and others acknowledged the
     importance of searching a confidential informant, both
     before and after a drug transaction, it is clear that
     Osborne was seldom, if ever, subject to a thorough
     check. Osborne was frequently allowed to use his own
     vehicle during the buys. (On one occasion his mother
     even accompanied him on the buy.)   Although Osborne’s
     sheer number of contacts alone might have indicated
     that he was a habitual user of illegal drugs, deputies
     never tested him.   (Osborne himself testified that he
     was probably high during many, if not most, of these
     transactions.)   Osborne also selected the targets of
     these transactions on his own.    It is not clear how
     often (if at all) officers conducted field tests to
     confirm the presence of drugs.

           While the sheriff’s deputies clearly did not take
     all possible precautions in the use of Osborne as an
     informant, the department did . . . undertake some
     measures to validate the buys.     A check of Osborne’s
     criminal record in West Virginia and Kentucky, though
     perhaps cursory, was conducted before any of the
     transactions took place.    Osborne wore a wire during
     at least some buys.     Deputies obtained warrants for
     each arrest and every suspect -- including each of the
     plaintiffs -- was indicted by a Wayne County grand
     jury.    The Wayne County Prosecutor, Jim Young, had
     some oversight . . . .

J.A. 839-40.     There is no suggestion that Sheriff Pennington,

Chief Deputy Elliott, or any deputy or investigator in fact knew

that Osborne was faking the drug buys.

             As a result of the fabricated evidence, twenty-nine

individuals, including each of the plaintiffs, were arrested and

indicted.     Because of a backlog at the forensic laboratory used

by the Wayne County Sheriff’s Department, the substances Osborne



                                 5
delivered to the deputies were not tested until trial dates were

set for the individuals implicated by Osborne.                                But when the

forensic     results       finally     did   become         available,      they     revealed

that   the    substances         delivered       by    Osborne       were     not    in       fact

controlled substances.                The Wayne County prosecutor ultimately

dismissed     all      charges         against        the     plaintiffs          and      other

individuals inculpated by evidence gathered through Osborne.

             The     plaintiffs        in    this      appeal,        whose       claims      the

district court consolidated, were arrested and indicted as a

result of the evidence falsified by Osborne.                               They filed suit

against      the     Wayne        County      Sheriff’s         Department,             Sheriff

Pennington,        Chief     Deputy      Elliot,        and     several          deputies       or

investigators who have since been dismissed.                                The plaintiffs

allege    violations       of    42    U.S.C.    § 1983       and    the     West    Virginia

constitution and assert several claims under state law.                                 Sheriff

Pennington     and    Chief       Deputy     Elliot      were       sued    in    both     their

individual     and     official        capacities.            The    Sheriff       and     Chief

Deputy    Elliott     moved      for    summary        judgment      on    several       bases,

including    qualified          immunity.        The    motion       was    denied       by   the

district court.            Sheriff Pennington and Chief Deputy Elliott

appeal the denial of qualified immunity.




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                                         II.

            We     have    jurisdiction       to     review   a   district    court’s

denial of a claim of qualified immunity to the extent the ruling

turns on a question of law.          Henry v. Purnell, 501 F.3d 374, 376

(4th Cir. 2007); Winfield v. Bass, 106 F.3d 525, 529 (4th Cir.

1997) (en banc).          Our review of the denial of qualified immunity

is de novo, but we take as true the facts that the district

court   “deemed     sufficiently    supported          for    purposes   of   summary

judgment.”       Rogers, 249 F.3d at 285 & n.2 (quoting Behrens v.

Pelletier, 516 U.S. 299, 313 (1996)).                  Where the district court

is not explicit, we may review the record “to determine what

facts the district court, in the light most favorable to the

nonmoving party, likely assumed.”                    Id. (quoting Behrens, 516

U.S. at 313); see also Valladares v. Cordero, 552 F.3d 384, 389

(4th Cir. 2009).



                                     III.

            In evaluating claims of qualified immunity, we have

first decided whether the facts, as taken in the light most

favorable     to     the    plaintiff,        make     out    a   violation    of   a

constitutional right.          Henry, 501 F.3d at 377.               If this first

step has been satisfied, we have then decided whether the right

at issue was clearly established at the time of the alleged

misconduct.        See id.; see also Pearson v. Callahan, No. 07-751,

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slip. op. at 6, 10-11 (U.S. Jan. 21, 2009) (noting that this

two-step     sequence       is    no     longer       mandatory,        but    is    often

appropriate and beneficial).

             In denying qualified immunity here, the district court

concluded     that     there     was    a     material        factual   dispute      about

whether the Sheriff and Chief Deputy Elliott were responsible

for   a    custom    of    deliberate        indifference       to   conduct     such   as

Osborne’s.          Robertson     v.    Pennington,       No.     3:05-cv-0777      (S.D.

W. Va. July 18, 2008).            The district court invoked the framework

applicable to government entity and official capacity liability,

holding that “a jury could fairly conclude that the Wayne County

Sheriff’s     Department,        Sheriff       Pennington,       and    Deputy      Elliot

themselves         were     responsible           for     violating           plaintiffs’

constitutional right not to be deprived of liberty as the result

of fabricated evidence.”               Robertson, No. 3:05-cv-077, slip op.

at 10; see also Monell v. Dep’t of Soc. Servs. of City of N.Y.,

436 U.S. 658, 690-91 (1978) (indicating that government entities

may   be     liable       for    unconstitutional         policies       or     customs);

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (noting that

official capacity claims require plaintiff to prove a policy or

custom     under     Monell).          The    Monell     framework      applicable      to

government     entity      (or    official        capacity)      liability      bears   on

whether a government entity is sufficiently responsible for a

constitutional        deprivation       to     hold     the    entity    liable     under

                                              8
§ 1983;    Monell      does     not      bear       on     whether      there      has    been        a

constitutional deprivation in the first place.

               Here, it is appropriate for us to begin by considering

the question of whether the plaintiffs have shown a violation of

a constitutional right.                 See Pearson v. Callahan, slip op. at

10-11.     The plaintiffs argue that they were unconstitutionally

deprived of their liberty as the result of fabricated evidence.

We have recognized a constitutional right “not to be deprived of

liberty    as     a    result      of    the        fabrication       of    evidence           by    a

government       officer        acting         in     an       investigative        capacity.”

Washington      v.     Wilmore,         407    F.3d       274,    282      (4th    Cir.        2005)

(emphasis added) (internal quotation omitted).                               In the present

case, however, the confidential informant (Osborne) rather than

a government officer created false evidence.                             Neither the facts

as    viewed    by    the   district          court      nor    any   allegations         in        the

record    (even       taken     in       the        light      most     favorable         to        the

defendants)      suggest      that       Sheriff         Pennington        or     Chief    Deputy

Elliott    intended         that        Osborne          fabricate      evidence          or        had

knowledge that Osborne fabricated the evidence used to arrest

and indict the plaintiffs.

               The facts as recounted by the district court are also

inadequate to suggest that Pennington and Elliot were reckless

with respect to the falsity of the evidence offered by Osborne.

The    district       court   noted       that        the      deputies     did     take       some

                                                9
precautions to validate Osborne’s actions.                       Robertson, No. 3:05-

cv-077, slip op. at 3.                 They checked Osborne’s criminal record

before any transactions took place, required him to wear a wire

during some of the buys, and submitted the substances he turned

in for forensic testing.                 Id.       Osborne was able to bypass law

enforcement          precautions         by        concealing     substances      in     a

compartment in his sandal.                   Id. at 4.        Because the plaintiffs’

allegations do not suffice to establish recklessness, we need

not decide whether the Constitution affords the plaintiffs a

right against a government officer’s recklessness with respect

to false or fabricated evidence.                       See Justice v. Dennis, 793

F.2d       573,    578   (4th   Cir.    1986)       (noting    that   recklessness     and

gross negligence may be sufficient for some claims under the due

process clause).

                  At bottom, the plaintiffs argue that the Sheriff and

his    deputies       failed    to     act    as    reasonable    police   officers     in

using Osborne as a confidential informant.                        To succeed on this

claim, the plaintiffs would have to demonstrate that there is an

established constitutional right not to be deprived of liberty

as     a    result       of   false    evidence       negligently      gathered   by     a

government officer.             The Supreme Court, however, has held “that

the Due Process Clause is simply not implicated by a negligent

act of an official causing unintended loss of or injury to life,

liberty or property.”                 Daniels v. Williams, 474 U.S. 327, 328

                                               10
(1986); see also Jean v. Collins 221 F.3d 656, 660 (4th Cir.

2000) (en banc).       There is no constitutional right that protects

against the deprivation of liberty as a result of negligently

gathered evidence.

               Because the facts alleged by the plaintiffs do not

make     out    a   violation   of     a    constitutional     right,    Sheriff

Pennington and Chief Deputy Elliott are entitled to qualified

immunity.       The district court erred by failing to grant summary

judgment to Pennington and Elliott on those claims for which

qualified immunity is an available defense, namely, the § 1983

claims    asserted    against   them       in   their   individual   capacities.

The district court’s order denying qualified immunity to Sheriff

Pennington and Chief Deputy Elliott is therefore reversed.                   The

district court will enter the appropriate order on remand.



                                                         REVERSED AND REMANDED




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