                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-2140


QUAN LEWAYNE DAVIS,

                  Plaintiff - Appellant,

             v.

PRINCE GEORGE’S COUNTY, MD; ISMAEL CANALES,

                  Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, District Judge.
(8:05-cv-03080-DKC)


Submitted:    September 30, 2009            Decided:   October 23, 2009


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael P. Coyle, Richard Chaifetz, Columbia, Maryland, for
Appellant.   Kevin Karpinski, Victoria M. Shearer, KARPINSKI,
COLARESI & KARP, Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Quan      Lewayne       Davis    appeals       the    district        court’s

adverse grant of summary judgment and dismissal of his complaint

alleging violations of his civil rights as guaranteed by the

Fourth    and    Fourteenth      Amendments,        as   set     forth   in   42   U.S.C.

§§ 1983,        1985    (2006),       false       arrest,      false     imprisonment,

malicious prosecution, and intentional infliction of emotional

distress     against     Defendants        Prince     George’s     County,      Maryland,

and Detective Ismael Canales.                     The charges related to Davis’

arrest in 2002 and subsequent trial in Maryland state court on

murder, assault, riot, and weapons charges relating to a fight

and the killing of Brandon Malstrom after a homecoming party

near   the      University      of   Maryland       campus.        On    appeal,    Davis

challenges       the    district      court’s       determination        that      Canales

possessed       probable    cause     to     charge      Davis    with    murder,       thus

establishing Canales’ entitlement to qualified immunity, and its

dismissal of Davis’ common law malicious prosecution claim.                             For

the reasons stated below, we affirm.

             We review a grant of summary judgment de novo, CACI

Int'l, Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150,

155 (4th Cir. 2009), viewing factual evidence in the light most

favorable to Davis, against whom summary judgment was granted.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Summary      judgment      is    appropriate        when    no    genuine       issue     of

                                              2
material    fact      exists       and    the       moving    party      is   “entitled        to

judgment as a matter of law.”                   Fed. R. Civ. P. 56(c).                    Summary

judgment will be granted unless a reasonable jury could return a

verdict    for    the       nonmoving      party      on     the    evidence        presented.

Anderson, 477 U.S. at 248.

            Davis’ first claim of error is that the district court

erred in its determination that Canales possessed probable cause

to     charge    Davis       with        murder,      thus     establishing           Canales’

entitlement      to   qualified          immunity.           Specifically,      he     asserts

that    Canales       had     no    probable         cause     to     arrest        Davis     for

Malstrom’s murder, that he made material misrepresentations in

his Application for Statement of Charges, and that he omitted

material facts, which resulted in the improper issuance of the

first degree murder arrest warrant.

            Qualified            immunity       protects        government           officials

performing       discretionary           functions      from       liability        for     civil

damages    “insofar         as   their     conduct      does       not   violate          clearly

established       statutory         or    constitutional            rights     of     which     a

reasonable person would have known.”                       Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).              Utilizing a two-prong test for resolving

qualified immunity claims, a court first "must decide whether

the facts that a plaintiff has alleged (see Fed. Rules Civ.

Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a

violation of a constitutional right," Pearson v. Callahan, 555

                                                3
U.S. __, 129 S. Ct. 808, 815-16 (2009), and, "[s]econd, if the

plaintiff has satisfied this first step, the court must decide

whether the right at issue was ‘clearly established’ at the time

of [the] alleged misconduct."                     Id. at 816 (citation omitted).

Overruling Saucier v. Katz, 533 U.S. 194 (2001), the Supreme

Court recently held that "courts of appeals [are] permitted to

exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed

first        in    light      of    the    circumstances      in      [a]    particular

case. . . ."          Pearson, 129 S. Ct. at 818.            In this case, we find

that "it is plain that [the] constitutional right" postulated by

Davis "is not clearly established."                    Id. at 811, 818; see also

Walker v. Prince George’s County, MD, 575 F.3d 426, 429 (4th

Cir. 2009). 1

                  Davis     bears    the    burden     of   proving     that    Canales

“deliberately or with a reckless disregard for the truth made

material false statements in his affidavit . . . or omitted from

that affidavit material facts with the intent to make, or with

reckless disregard of whether they thereby made, the affidavit

misleading.”              Miller v. Prince George’s County, MD, 475 F.3d

621,        627   (4th     Cir.    2007)   (internal    quotations     and     citations

        1
        Qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341 (1986).



                                              4
omitted).     “Reckless disregard” can be established by evidence

that the officer acted “with a high degree of awareness of [a

statement’s] probable falsity,” that is, “when viewing all the

evidence, the affiant must have entertained serious doubts as to

the truth of his statements or had obvious reasons to doubt the

accuracy     of    the    information         he   reported.”      Id.      (internal

quotations and citations omitted).                   With respect to omissions,

“reckless     disregard”        can   be     established    by   evidence     that     a

police officer “failed to inform the judicial officer of facts

[he]   knew       would    negate      probable       cause.”      Id.      (internal

quotations and citations omitted).                 Allegations of negligence or

innocent mistake by a police officer will not provide a basis

for a constitutional violation.               Id. at 627-28.

             To    establish     a    constitutional       violation,       the    false

statements or omissions must be “material,” that is, “necessary

to   the   [neutral       and    disinterested        magistrate’s]      finding     of

probable cause.”          Id. at 628 (quoting Franks v. Delaware, 438

U.S. 154, 155-56 (1978)).                  To determine materiality, a court

must “excise the offending inaccuracies and insert the facts

recklessly     omitted,     and       then    determine     whether    or    not    the

‘corrected’ warrant affidavit would establish probable cause.”

Id. at 628 (quoting Wilson v. Russo, 212 F.3d 781, 789 (3d Cir.

2000)).       If    the    “corrected”           warrant   affidavit     establishes



                                             5
probable cause, no civil liability lies against the officer.

Id.

            The facts underlying the case are as follows.                          Davis

ran into an acquaintance, John Ryan Schlamp, the afternoon on

November 9, 2002.         Schlamp informed Davis that he was planning

to go to College Park the following night to attend homecoming

parties,   and    Davis    ultimately      arranged        to   meet    Schlamp.     At

approximately     9:30    p.m.    on    November      10,   2002,      Davis   and   his

friends Jessica Pryor, Stanley Chalk, and Aaron Diggs met up

with Schlamp and his friends Robert Fournier, Jake Adams, Ryan

Horan, and Kenny Kahalawei at a College Park convenience store.

Davis, an African American male, is 5 feet 3 inches tall.                             On

this   occasion,    his    hair    was   braided      in    cornrows     and   he    was

wearing a baggy navy blue velour sweat suit with a matching navy

blue shirt under the sweat suit jacket.                     The two groups later

went to a party being held at two adjoining houses on Dickenson

Avenue, one of which was the residence of Scott Ehrlich, located

at 7307 Dickenson Avenue.

            According to the statement Davis gave police, while at

the    party,    Davis    was    accused       of   inappropriately       touching    a

female.    Davis was asked to leave the party, but refused to do

so.    Davis became loud and aggressive, and Schlamp, who had been

drinking, began to yell.               Davis stated that he was forced to

pull Schlamp away to calm him down.

                                           6
              Schlamp     was   becoming        increasingly    inebriated,       loud,

and antagonistic.          He reported to police later that night that

he had had so much to drink that he “blacked out” and did not

remember much of the night’s events.                  At one point later in the

party,        Schlamp      reportedly       screamed         out,    “Fuck         these

motherfuckers.          If anyone has the balls to bring it then . . .

bring it.       We will kill all these mother fuckers here.”                   Later,

Schlamp, who was of mixed race, began initiating problems with a

group of five to six African American men.                      Davis testified in

his deposition that he observed one of the men in this group

reaching for his hip, as if he had a gun.                       In response, Davis

asked Pryor, Chalk, and Diggs if they had a pocket knife in the

event something happened.              One of his friends handed Davis a

pocket knife.           According to Davis, he diffused the situation

with the African American men, and returned the knife to his

friends.

              Davis     also    possessed       a   larger   knife   that    evening,

which knife he showed to Jake Adams.                   Adams described the knife

as “a Rambo knife.         Serrated on the back, sharp.”

              As the party was ending, Davis realized he had lost

his cell phone and went to look for it.                  When he returned to the

front    of    the    house,     he   observed       Schlamp,    Fournier,        Adams,

Kahalawei, and Horan in a confrontation with Brandon Malstrom,

William    Malstrom,       Brandon    Conheim,        Matt   Mitchell,      and    Paul

                                            7
Speakman, who were all University of Maryland students.                              Schlamp

had    approached          this    group,   accused       them   of    taking       his    cell

phone,       and    demanded       the   group     give    him   their       cell     phones.

Brandon Malstrom (“Malstrom”) told Schlamp that he did not have

his cell phone, whereupon Schlamp stated, “I am gonna kill you”

and punched Malstrom in the face.                      While Davis asserted in his

deposition          that     he    never    came       within    10-12       feet    of     the

altercation, 2 others made statements that Davis and Fournier got

into       the   fight,      and   Malstrom      was    placed    in     a   chokehold       by

Fournier.          William Malstrom, Conheim, and Mitchell entered the

fight,       and     Conheim       and   Mitchell       observed       Davis    reach       for

something that was tucked into the back of his waist.                                     Chalk

observed the fight and described the scene as “one big bunch” of

people       with     each     “grabbing      each      other    and     then       scuffling

around.”         William Malstrom heard his brother scream out.                            Then

someone yelled “police” and everyone scattered.                              According to

William Malstrom’s statement, his brother stumbled into the back

yard.       Malstrom was found about a minute later on the ground in

the backyard with a stab wound in his chest.                             Davis fled the

scene and ran to his car as police arrived, leaving with Pryor,

Chalk, and Diggs.


       2
       Davis’ recollection was corroborated by Conheim at the
criminal trial.



                                              8
             University        of     Maryland      Police      Officer       Ross    Bogash

arrived first at the scene and took Schlamp into custody after

Conheim identified Schlamp as the individual who instigated the

assault.       An   individual         thereafter        told    Officer      Bogash       that

there was someone in the backyard who was injured, and he found

Malstrom with a four to five inch cut on the left side of his

chest,   and    his   inner         organs     protruding.         Malstrom          was   not

breathing and had no pulse.                 He was transported to the hospital

where he later died of his injuries.

             Officers detained Kahalawei, Fournier, and Horan for

questioning at the scene, and then released them.                             When Officer

Bogash   told     Schlamp      that    he     was   being    detained         for    assault,

Schlamp spontaneously stated to the Officer, “I killed him.”

During   the    drive     to    the     police      station,      Schlamp       repeatedly

asserted, “I killed someone tonight.”

             Detectives        from     the    Prince      George’s     County        Police

Department took statements from several witnesses in an attempt

to determine who was involved in the assault.                           Conheim stated

during his interview that, after Schlamp punched Malstrom in the

face and Fournier put Malstrom in a chokehold, he saw “a black

male with corn rows (dread-locks) dressed in dark blue-jeans and

a dark blue jacket reaching for something that was tucked into

the   back   of     his   waste       [sic].        At    that    point       in     time,    I

remembered      thinking       that    he     was   reaching      for     a    gun.”         In

                                              9
describing        the     same    sequence       of    events,           Mitchell    stated     to

police that, “There was a kid in black leather jacket, dark blue

jeans,      and    dreeds[sic]       tied    back       that    pulled          something     from

[]waist and was one of the kids involved.”                                   Speakman stated

that, “There was also another person involved in the physical

assault.      He was African American 5’9” 170 lbs with corn rows.

He    was   wearing        all   black.         He    was     one    of     the     main    people

threatening to physically assault people at the party.                                     William

Malstrom identified three individuals as initiating the assault

on his brother, and similarly described Davis as one of those

individuals who was "hands on" with his brother.

              Detective Canales was selected as the lead homicide

detective.          He    reviewed     the   statements             of    the     University    of

Maryland police officers and the statements of Mitchell, William

Malstrom, and Speakman.                Canales interviewed Schlamp later in

the    morning       of     November      10,        2002,     at    which        time     Schlamp

identified         Davis     as     being        present       with         him     during     the

altercation        with     Malstrom.        A    statement          also    was     taken    from

Fournier, who described an individual, “About 5’3” tall/Black

male/Dark         velvet     type    jacket/Dark             skinned/Pants          might     have

matched jacket/,” as Schlamp’s friend who was present.

              On November 10, 2002, Canales filed an Application for

Statement of Charges against Schlamp, charging him with first

degree murder, and a judicial officer found there to be probable

                                                10
cause to arrest Schlamp.        The following day, Canales filed an

Application   for   Statement    of     Charges   against   Davis,   also

charging him with first degree murder in Malstrom's death.           The

Application stated as follows:

     I, the undersigned, apply for a statement of charges
     and a summons or warrant which may lead to the arrest
     of the above named Defendant because on or about
     November 10, 2002 at 7307 Dickinson Ave. College Park,
     Prince George’s County, Maryland, the above named
     Defendant did stab and kill the victim, Brandon James
     MALSTROM (W/M/8/21/82).    On November 10th, 2002, at
     approximately 0125 hrs, Uniformed Patrol Officers
     responded to 7307 Dickenson Ave. College Park, Prince
     George’s County, MD for the report of a fight.     Once
     on the scene officers located the victim in the
     backyard of the residence suffering from an apparent
     stab wound to the chest.      Officers located several
     witnesses on the scene that identified the co-
     defendant John Ryan SCHLAMP, as being one of three
     subjects involved in an altercation with the victim.

     This co-defendant was subsequently apprehended on the
     scene.   He later identified the def., who is a known
     associate, as the other subject involved in this
     altercation. According to witnesses, the def. and co-
     def. were observed striking the victim.       Witnesses
     observed the def. pulling an unknown object from his
     waistband and striking the victim in the torso.
     According to witnesses, it was during the melee that
     the victim was stabbed. The victim staggered away and
     collapsed a short distance away.    Fireboard responded
     and   transported  the   victim  to    Prince  George’s
     Hospital.   Upon police arrival, the def. was able to
     make his escape. On Nov. 10th, 2002, at 0645 hrs, the
     victim was pronounced dead by Dr. BLAIR/Physician as a
     result of his injuries.

     All these events occurred in Prince George’s County,
     Maryland.

On the same date, a judicial officer for the District Court of

Maryland for Prince George’s County found there to be probable


                                   11
cause    to    arrest     Davis. 3        Following   his    arrest,    Davis    denied

having any involvement in the fight, and maintained that he was

merely a bystander. 4

              A grand jury indicted Davis on charges of first degree

murder, common law riot, first degree assault, second degree

assault, and openly carrying a dangerous weapon.                        On June 27,

2003, Davis was found guilty by a jury of common law riot and

openly carrying a deadly weapon, but was acquitted of the murder

and assault charges.               The court sentenced Davis to ten years’

imprisonment        for      the        riot    conviction      and    three     years’

imprisonment, to be served consecutively, for the possession of

a deadly weapon conviction.

              The     Court        of     Special     Appeals     affirmed       Davis’

convictions      in     an   unpublished        opinion   on    February   20,    2004.

Davis filed a Petition for Post-Conviction Relief, which was

denied.       Davis then filed the suit which is the subject of this

appeal.




     3
         Fournier also was arrested for Malstrom's murder.
     4
       Canales later obtained a search warrant for Davis’ car,
and officers found a navy blue velour jacket and pants located
in the trunk.     Laboratory analysis revealed the presence of
blood on the pants, and the laboratory found to a reasonable
degree of scientific certainty, that, based on DNA, the blood
found on Davis’ pants belonged to Brandon Malstrom.



                                               12
            In   support    of     his    civil    suit,      Davis    claimed     that

Canales   made    several    false       and   misleading      statements     in    the

Application for Statement of Charges.                   He first challenges the

statement that Schlamp identified Davis as the “other subject

involved in the altercation.”              He points to Schlamp’s statement

that Schlamp had “blacked out” prior to the start of the fight

and could not remember exactly what had happened or who had been

present, stating only that he presumed that the people present

with him at the fight were those with whom he remembered leaving

a   friend’s     house,    including      Davis,       and    concludes    that    the

statement   that    Davis    was    involved      in    the    fight    was   untrue.

Second, he challenges the statement that Davis was seen “pulling

an unknown object from his waistband and striking the victim in

the   torso.”      While    Canales      reviewed      witness    statements       that

Davis was involved in the altercation with Malstrom, including

those of William Malstrom, Conheim, and Speakman, and possessed

witness statements that Davis reached into his waistband during

the fight, Davis asserts that no witness said that he or she had

seen Davis in physical contact with the victim. 5                         Davis also


      5
       While the district court likewise stated that no one had
actually seen Davis making contact with the victim, a careful
review of the witness’ statements reveals that there was some
evidence to the contrary.     Specifically, Speakman identified
Davis as involved in the physical assault, and William Malstrom
identified Davis as one of three “principle altercators [sic]”
who were “hands on” with his brother.     In addition, Mitchell
(Continued)
                                          13
challenges Canales’ statements that “[a]ccording to witnesses,

it   was    during        this    melee      that    the    victim    was      stabbed,”      and

“[t]he     victim     staggered         away    and    collapsed         a    short     distance

away.”       As Davis argues, the timing of the stabbing was not

based on any fact stated by any witness, but rather based on

inference         taken    from       the    various       statements.             No   one   saw

Malstrom get stabbed, nor did anyone see Malstrom move to the

rear of the house where he was found injured.                                As the district

court found, these statements were speculation and inference by

Canales, based on the facts as described by the witnesses, and

based on William Malstrom’s statement that “my brother ended up

stumbling into the back yard.”

              In addition to the affirmative statements set forth

above, Davis argues that Canales omitted material exculpatory

facts      from    his     warrant      application         that     would     have      negated

probable      cause.              The       alleged    omissions         include        witness

statements that Schlamp, Fournier, and Kahalawei threw punches

at   Malstrom,       that        no   one     stated       that   they       saw    Davis     make




stated that three to five individuals were “throwing punches” at
the victim’s mid-section while Fournier had him in a bear hug
from behind, and that Davis, who “pulled something from [his]
waist [] was one of the kids involved.” Thus, this statement by
Canales may not have been a misstatement at all.



                                                14
physical contact with the victim, 6 Schlamp’s statement that he

“killed someone tonight” made on the way to the police station,

the fact that Kahalawei was a U.S. Marine who would have been

more likely to be in possession of the type of knife that killed

Malstrom, and that there was no evidence that Malstrom sustained

his injuries during the fight. 7

           After     reviewing   the    “corrected”   facts,    disregarding

Canales’ alleged misleading statements, and taking into account

the facts Davis believes would have been exculpatory, as the

district court is required to do under Miller, 475 F.3d at 628,

the district court nonetheless found that probable cause existed

to support issuance of the arrest warrant.            We find no error in

this determination.

           Probable cause to arrest deals with probabilities and

depends   on   the   totality    of    the   circumstances;    the   officer's

reasonable ground for belief of guilt "must be particularized

with respect to the person to be searched or seized."                 Maryland



     6
        Again, based upon a careful reading               of    the   witness
statements, there was evidence to the contrary.
     7
       Davis is referring to speculation at the scene that
perhaps Malstrom sustained his injury trying to jump over a
fence in the backyard.    Officers at the scene inspected the
fence, but found no sign of an accident.   No one saw Malstrom
fall or attempt to climb the fence.    Plus, the medic at the
scene told one of the officers that he believed the injury was
caused by a knife.



                                       15
v. Pringle, 540 U.S. 366, 371 (2003) (citing Illinois v. Gates,

462 U.S. 213, 232 (1983), Ybarra v. Illinois, 444 U.S. 85, 91

(1979)).     Here, undisputed evidence demonstrates that Davis was

involved     in    the       fight,       was   seen    pulling     something           from   his

waistband,        and       was    one     of    only    three      people        consistently

identified        as    a     participant         in    the   melee.           Moreover,       the

evidence supported the reasonable inference that Davis stabbed

Malstrom     because          he    was        identified     as    one      of    the      three

individuals going “hands on” with Malstrom, was seen pulling

something     from          his     waistband,         and,   within       a      short        time

thereafter, William Malstrom heard the victim scream out, and

Malstrom was found within a minute thereafter with a four to

five inch stab wound in his chest.                       As the district court held,

Davis “was in the right place at the right time to have stabbed

Malstrom,     and       had       taken    actions       consistent       with      being      the

killer, such as jumping into the fight and pulling an object

from   his    waistband.”                See    e.g.,    Pringle,      540      U.S.     at     374

(upholding probable cause to arrest finding where defendant was

one of three stopped in car containing drugs and there were no

indicia that any one suspect was more likely guilty than the

others).      This          evidence      is    sufficient     to    establish          probable

cause to issue the arrest warrant.

             Nor does Schlamp’s statement that he killed someone

negate     probable         cause,       especially      in   light       of      his    extreme

                                                 16
intoxication,        which          makes    the     veracity        of     his    statement

questionable         and      does     not        remove     Davis        from    suspicion.

Moreover, the possibility that Malstrom received his injury from

an accident, rather than from a stabbing, is purely speculative

and does not serve to negate probable cause, given the facts

supporting a stabbing injury.                  Finally, there is no showing that

Canales displayed a reckless disregard for the truth in drafting

his statement supporting probable cause for the arrest of Davis.

The    assumptions       he    made     were      entirely     reasonable,         given   the

statements he reviewed, the evidence that he had available to

him at the time, and the chaotic circumstances surrounding the

crime.

               Given that there was probable cause to arrest Davis

for Malstrom’s murder notwithstanding the alleged misstatements

and    omissions      in      Canales’      warrant       application,       the    district

court did not err in finding that Davis failed to assert any

constitutional violation to a right clearly established, such

that       Canales   was      not    entitled       to     qualified      immunity.        The

district       court’s     dismissal         of     the    suit   based      on    qualified

immunity against both Canales and Prince George’s County 8                                  is




       8
       See Young v. City of Mount Ranier, 238 F.3d 567, 579 (4th
Cir. 2001).



                                               17
affirmed. 9       We dispense with oral argument because the facts and

legal       contentions   are   adequately    presented    in   the    materials

before      the   court   and   argument    would   not   aid   the   decisional

process.

                                                                        AFFIRMED




        9
       In light of our determination that Canales had probable
cause to arrest Davis for the murder of Malstrom, and because no
malice by Canales has been demonstrated, Davis’ assertion of
error by the district court in dismissing his common law
malicious prosecution claim likewise fails and was properly
rejected by the district court.    See Exxon Corp. v. Kelly, 281
Md. 689, 692, 381 A.2d 1146, 1149 (1978).



                                       18
