                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 09-1932


JOHN MATTHEWS,

                 Plaintiff – Appellant,

          v.

OFFICER ARTHUR THOMAS, of the Columbia Police Department
sued   individually   and   officially;   OFFICER   SCOTT   E.
MCDONALD, of the Richland County Sheriffs Office sued
individually and officially; OFFICER WALTER BALES, of the
Columbia    Police   Department     sued   individually    and
officially; SERGEANT EWING, of the Richland County Sheriffs
Department sued individually and officially; CAPTAIN SMITH,
of   the    Richland   County    Sheriffs   Department    sued
individually and officially,

                 Defendants – Appellees,

          and

ANN   SPEAR,    Assistant   Solicitor,   All being   sued
individually; INVESTIGATOR TAYLOR, of the Columbia Police
Department sued individually and officially,

                 Defendants,

          v.

RICHARD CHARLES RICHARDSON CATHCART,

                 Movant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:07-cv-01556-JFA)
Argued:   May 12, 2010                     Decided:   July 1, 2010


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Duncan and Judge Agee joined.


ARGUED: William Clifford Wood, Jr., NELSON, MULLINS, RILEY &
SCARBOROUGH, LLP, Columbia, South Carolina, for Appellant.
Peter Michael Balthazor, OFFICE OF THE CITY ATTORNEY, Columbia,
South   Carolina;   Andrew  Lindemann,   DAVIDSON,  MORRISON   &
LINDEMANN, PA, Columbia, South Carolina, for Appellees.       ON
BRIEF: Paul T. Collins, Candace C. Jackson, NELSON, MULLINS,
RILEY & SCARBOROUGH, LLP, Columbia, South Carolina, for
Appellant.    Robert D. Garfield, Joel S. Hughes, DAVIDSON,
MORRISON & LINDEMANN, PA, Columbia, South Carolina, for
Appellees Officer Scott E. McDonald, Sergeant Ewing, and Captain
Smith.


Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:
     John Matthews appeals the district court’s order granting

summary judgment to Officers Arthur Thomas and Walter Bales of

the City of Columbia Police Department, and Officer Scott E.

McDonald        of    the      Richland          County    Sheriff’s         Department

(collectively,        “the    Officers”). 1         For   the   reasons      below,      we

affirm.



                                            I.

     We       view   the    evidence   in    the     record     in    the   light      most

favorable to Matthews, the non-moving party.                         Laber v. Harvey,

438 F.3d 404, 415 (4th Cir. 2006) (en banc).                           On January 11,

2007,    at    approximately      6:20    p.m.,      Sylvia     Wilson      was   in   the

driveway of her home, unloading groceries from her car, when an

African-American man in dark clothing accosted her and demanded

her purse.       Ms. Wilson complied, and her assailant fled on foot.

The next day, just before 2:00 p.m., Claire Haltiwanger was in

the parking lot of a K-Mart when an African-American man wearing

fatigues stole her purse off her shoulder.                       The purse-snatcher

fled in a red sedan, driven by an accomplice.                        Within minutes, a



     1
        Matthews also sued Investigator Taylor of the Police
Department and Sergeant Ewing and Captain Smith of the Sheriff’s
Department.   However, these defendants are not parties to this
appeal.



                                            3
man held-up a nearby mini-mart.               As the robber and an accomplice

fled in a red sedan, the clerk called the police.

     Officer      Scott    McDonald        of      the     Sheriff’s     Department

responded, and dispatch quickly broadcast a description of the

get-away car involved in the mini-mart robbery over the radio.

While investigating Ms. Haltiwanger’s purse-snatching, Officer

Walter    Bales     overheard       this        bulletin.      Because     of    the

similarities between the vehicle involved in the purse-snatching

and the mini-mart hold-up, and the proximity of the K-Mart to

the mini-mart, Officer Bales proceeded to the mini-mart.                         The

mini-mart’s security tape revealed that, just before the culprit

entered the mini-mart, his accomplice, an African-American man

wearing a camouflage jacket, exited the red sedan, went around

the side of the mini-mart, and discarded a small bag.                     This bag

turned out to be Ms. Haltiwanger’s purse.                    Four days later the

Sheriff’s Department discovered the red sedan used in the mini-

mart robbery; it contained items belonging to Ms. Wilson and Ms.

Haltiwanger, including one of Ms. Wilson’s checks made out to

“John E. Matthews.”

     Officer   McDonald      then   searched         the    Sheriff    Department’s

databases   for    the    name    “John       E.   Matthews.”     Matthews       (the

plaintiff-appellant) appeared in the database because of a 2005

arrest.     Officer      McDonald   shared         this    information    with   the

Police    Department,       and     Officer         Bales     created     a     color

                                          4
photographic line-up using the Sheriff Department’s 2005 photo

of Matthews.

       The color line-up comprises six photos of African-American

men.     In the line-up, Matthews is wearing a black, collared

shirt with a yellow jacket over it.          As for the five other men

in the line-up, one is wearing a white t-shirt with a tan jacket

over it, two are wearing white t-shirts, another is wearing a

white t-shirt with a black jacket over it, and the final man is

wearing a sleeveless black and white t-shirt.          Each face has a

discernable    shadow   behind   it,   and    each   photo   is    cropped

differently.    As for facial features, Matthews has a mustache

and is bald.    At least two of the other men in the line-up are

bald, and at least three others have mustaches.        J.A. 502.

       On January 17, 2007, Officer Arthur Thomas of the Police

Department presented this line-up to Ms. Wilson.         Though Officer

Thomas made a black and white copy of the color line-up to make

it “as neutral as possible,” J.A. 344, he nonetheless presented

the color version of the line-up to Ms. Wilson.              Ms. Wilson

unequivocally identified Matthews.       Officer Thomas subsequently

swore out a warrant affidavit for Matthews, relying exclusively

on this identification for probable cause.

       On the same day, Officer Bales showed Ms. Haltiwanger a

black and white version of the photo line-up. Initially, Ms.

Haltiwanger told Officer Bales that none of the men in the line-

                                   5
up looked like the purse-snatcher.                              However, she went on to say

that photograph number two -- the photo of Matthews -- was the

closest match.               Ms. Haltiwanger then signed an affidavit, which

stated:       “I       picked      out    a    picture         of       [Matthews]      which       is   the

person    .        .    .    who     committed           the     crime.”             J.A.     89.        Ms.

Haltiwanger             understood            the     import            of     the     identification

affidavit, and at no time did she feel pressured by Officer

Bales    to        identify        Matthews.              Based         on    this    identification,

Officer Bales swore out an arrest warrant that stated that Ms.

Haltiwanger “did positively identify” Matthews.                                      J.A. 93.

       After       learning         about      Ms.       Haltiwanger’s           identification            of

Matthews, Officer McDonald wrote in his personal notes that,

based on this identification, he and his superior officer had

“agreed that there was no probable cause for an arrest warrant

on Matthews for his participation in [the mini-mart] incident.”

J.A.    292    (emphasis           added).            However,           in   the     same    paragraph,

after discussing the similarities between the suspects and the

proximity          of       the    mini-mart          robbery           and    the     K-Mart       purse-

snatching, Officer McDonald wrote “it is reasonable to believe

that    Matthews            is    involved”         in     the      mini-mart         robbery.           Id.

Officer       McDonald            then        swore       out       a     warrant       that    stated:

“[Matthews]            has    been       positively         identified           in    this     incident

after    being          positively        indentified            in      a    photo    line    up     by    a

victim in a related robbery that occurred in . . . proximity to

                                                      6
this robbery just minutes prior to this incident in the Columbia

Police Dept. jurisdiction.”            J.A. 316.           Matthews was arrested

that day.

        On April 4, 2007, the charges against Matthews for the

Wilson robbery were dropped after surveillance tapes revealed

that he was at work at the time of that robbery. On June 29,

2007,    the    state    solicitor    dismissed       the    remaining       charges.

Matthews was released on July 6, 2007.

     On June 7, 2007, pursuant to 42 U.S.C. § 1983, Matthews

filed    a     lawsuit   against     the       Officers,    claiming      that   they

violated     his   Fourth   Amendment      rights     by    seizing    him    without

probable       cause.     Further,     relying       on    state   law,      Matthews

asserted        claims    for      malicious        prosecution,       intentional

infliction of emotional distress, and civil conspiracy.                           The

Officers moved for summary judgment, arguing that (1) they did

not violate Matthews’ constitutional rights and, even if they

did, they are protected by qualified immunity from Matthews’

§ 1983 claims and (2) the state law claims are precluded by the

South Carolina Tort Claims Act or, in the alternative, fail as a

matter of law.      Matthews filed responses in opposition.

        At the summary judgment hearing, the Officers’ attorneys

discussed the § 1983 claims and the state law claims.                      Matthews’

attorney responded to each argument, including a discussion of

Matthews’ state law claims.            J.A. 588-90.          The district court

                                           7
denied the Officers’ motions, citing the existence of genuine

issues of material fact.

       The   Officers     then     moved       for    reconsideration,          and     the

district     court    granted      their       motion,       noting      that   it      was

especially      interested       in      the     qualified          immunity      issue.

Thereafter,     the     district      court     conducted       a     second     summary

judgment hearing.        After each side spoke regarding whether the

Officers     violated    Matthews’       constitutional         rights,     the       court

raised questions about the state law claims.                    Matthews’ attorney

did not object to this line of questioning; rather, he answered

the court’s questions.       J.A. 639-40.

       At the conclusion of this hearing, in an oral opinion, the

district     court    granted      the     Officers’         motions      for    summary

judgment on the § 1983 claims because Matthews had failed to

demonstrate     a    constitutional        violation,        and    it    granted       the

Officers’ motions for summary judgment on Matthews’ state law

claims because there was insufficient evidence to support them.

This appeal followed.



                                         II.

       Matthews argues that the district court erred by granting

summary judgment on his § 1983 claims in favor of the Officers

on the basis of qualified immunity.                        Specifically, he argues

that     the     Officers        violated            his     clearly       established

                                           8
constitutional right to be free from seizure without probable

cause because they had him arrested based on warrant affidavits

containing material misstatements and omissions.                         We review the

district     court's     order      granting       summary        judgment    de     novo.

Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir. 2007) (en

banc).

        “Qualified immunity shields 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.”     Henry v. Purnell, 501 F.3d 374, 376-77 (4th Cir. 2007)

(internal     citation      and     quotation       marks     omitted).            When    a

government     official       asserts       qualified         immunity,         we      must

determine: (1) whether the facts alleged show that the officer’s

actions violated a constitutional right, and (2) whether the

right    asserted   was     clearly     established          at    the   time      of     the

challenged actions.          Id. at 377 (citing Saucier v. Katz, 533

U.S. 194, 201-02 (2001)).             Both questions must be answered in

the   affirmative      to   defeat     an       official’s    claim      of   qualified

immunity, and the plaintiff “bears the burden of proof on the

first    question   -–      i.e.,    whether       a   constitutional         violation

occurred.”    Henry, 501 F.3d at 377.

        To carry this initial burden,              Matthews must show that each

officer “deliberately or with a reckless disregard for the truth

                                            9
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, 475 F.3d 621,

627   (4th   Cir.    2007)   (internal      citations       and    quotation      marks

omitted).      “Reckless      disregard”      requires      a     showing      that    an

officer, in light of all of the evidence, had “serious doubts as

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

the accuracy of the information he reported.”                     Id.    With respect

to omissions, Matthews must establish that the officer failed to

inform   the   magistrate     of    facts    that     the   officer       knew    would

negate a finding of probable cause.             Id.     Evidence of negligence

or honest mistake, however, is insufficient.                        Id. at 627-28.

Further, “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 (internal citations and

quotation    marks    omitted).      With     these    standards         in    mind,   we

review each warrant affidavit in turn.

      Matthews      argues   that   Officer    Thomas       acted       with   reckless

disregard for the truth by stating in his warrant affidavit that

Ms. Wilson picked Matthews out of the line-up because Officer

Thomas believed the line-up to be improperly suggestive and,

therefore, knew that Ms. Wilson’s identification was invalid.

However, even in the light most favorable to Matthews, there is

                                       10
no evidence that Officer Thomas believed that the color line-up

was suggestive.          Though he testified that he copied the color

line-up    into       black    and    white     to   make     it   “as   neutral   as

possible,” J.A. 344, there is no testimony that Officer Thomas

actually       believed       that   the   color     line-up       was   suggestive.

Officer Thomas, therefore, did not make a statement or omission

in reckless disregard for the truth in his warrant affidavit. 2

     Matthews next argues that Officer Bales’ warrant contains a

material misstatement made in reckless disregard for the truth

because it states that Ms. Haltiwanger “positively identified”

Matthews even though her identification was equivocal at best.

Regardless of her initial (or subsequent) equivocation, Officer

Bales    did    not   make     a   materially    false      statement    in   reckless

disregard for the truth in his warrant because she unequivocally

identified Matthews in her affidavit, and it was reasonable for

Officer Bales to rely on it.                    There is no dispute that Ms.


     2
       The parties cite to United States v. Saunders, 501 F.3d
384, 389-93 (4th Cir. 2007), and other related cases to argue
whether the color line-up is suggestive.     This line of cases
addresses whether a line-up is suggestive for purposes of
introducing identification evidence at trial, a context very
different from that presented by this case. Even assuming that
this precedent applies here, we find that the line-up is not
suggestive.     Matthews may be wearing a black shirt with a
yellow jacket, but he does not stand out.   J.A. 502.   Further,
there is no evidence that the process was unfairly suggestive or
that Ms. Wilson’s identification was otherwise unreliable.
Saunders, 501 F.3d at 389-90.



                                           11
Haltiwanger: (1) signed an affidavit identifying Matthews, (2)

understood the affidavit and its legal import, and (3) did not

feel coerced to sign it.                 There is also no evidence that Officer

Bales    acquired      the    affidavit         through      trickery.      Given      these

undisputed        facts,       we        believe       that,    regardless        of    any

equivocation, Officer Bales did not have “obvious reasons to

doubt the accuracy of the information he reported.”                         Miller, 475

F.3d at 627.

     Finally,      Matthews         argues      that      Officer    McDonald’s    warrant

was made in reckless disregard for the truth because (1) it

states that the mini-mart clerk “positively identified” Matthews

as the robber, when in fact, Officer McDonald never presented a

photo line-up to the mini-mart clerk, and (2) though Officer

McDonald did not believe that he had probable cause to arrest

Matthews, he sought a warrant.                      We disagree with Matthews on

both points.

        First,    when      read    as    a    whole,     Officer     McDonald’s    arrest

warrant for the mini-mart robbery is based on Ms. Haltiwanger’s

identification         of    Matthews         and   the    similarities     between      the

mini-mart      robbery       and    Ms.       Haltiwanger’s         purse-snatching.     In

fact, Officer McDonald never claimed he had shown a line-up to

anyone    at     the   mini-mart.             Though      perhaps     inartful,    Officer

McDonald’s warrant affidavit does not contain a misstatement.

Second, there is no evidence that Officer McDonald believed that

                                               12
he   did   not    have    probable      cause      to     arrest    Matthews.         Though

Matthews    points       to   a     statement      in     Officer    McDonald’s            notes

disclaiming      probable         cause,   this      is    plainly      a    typographical

error.      To    read    these      notes    otherwise         would       be    nonsensical

because they would renounce probable cause in the first sentence

of   the    paragraph         and    then,     without          hesitation,        have     the

remaining     two     sentences       of     the   paragraph        assert         facts    and

opinions    supporting        probable       cause.         J.A.    292.          Therefore,

Officer McDonald’s affidavit does not contain a materially false

statement made in reckless disregard for the truth.

      After reviewing the facts in the light most favorable to

Matthews, we find that the Officers did not deliberately or with

reckless     disregard         for     the     truth        make     materially           false

statements       or   omissions       in     their      warrant     affidavits.             The

Officers, therefore, are entitled to judgment as a matter of law

because     Matthews      failed      to     carry        his    burden      of    proof     to

demonstrate a violation of a constitutional right. 3                             Accordingly,

we affirm the district court.




      3
       As a result of this holding, we need not reach the issue
of whether the right allegedly violated was clearly established.



                                             13
                                           III.

       Matthews       also   argues      that    the    district       court    erred      in

granting the Officers summary judgment on his state law claims.

Matthews    does      not    challenge     the    substance       of    this    decision;

instead, he argues that the district court abused its discretion

by ruling on these claims without providing sufficient notice.

We   review     the    district     court’s       decision      to   rule     on     summary

judgment without sufficient notice for an abuse of discretion.

See Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261

(4th Cir. 1998).

       District courts have broad power to enter summary judgment

when it is appropriate.            Celotex Corp. v. Catrett, 477 U.S. 316,

326 (1986).        However, “that power is contingent on giving the

losing party notice that it must come forward and defend its

claim.”    U.S. Dev. Corp. v. Peoples Fed. Sav. & Loan Ass’n, 873

F.2d 731, 735 (4th Cir. 1989).                   The notice need not be formal,

but “it must, in view of the procedural, legal, and factual

complexities       of       the   case,    allow        the    party      a    reasonable

opportunity      to     present    all    material      pertinent        to    the   claims

under    consideration.”          Id.;    see,    e.g.,       Allstate    Ins.       Co.   v.

Fritz,    452   F.3d     316,     323    (4th    Cir.    2006)    (finding         that    the

presence of an argument in a motion for summary judgment alone

gave the non-movant sufficient notice for the court to rule on

it).

                                            14
       Here, after denying summary judgment on all of Matthews’

claims,       including     his    state       law    claims,       the        district    court

granted the Officers’ motion to reconsider.                             Though the court’s

order specifically mentioned the qualified immunity issue, it

granted the Officers’ motion to reconsider their entire motion

for    summary      judgment,      which    included            their    arguments      against

Matthews’ state law claims.                The district court’s order granting

the Officers’ motion to reconsider gave Matthews ample notice

that    all    of   the    issues    raised          in    their       motion     for   summary

judgment, including the state law claims, would be reconsidered

at the second hearing.

       Further,       Matthews     had     a     full      and     fair        opportunity   to

present all material relevant to the defense of these claims

before the court granted summary judgment.                                It is undisputed

that Matthews had the opportunity to respond to the Officers’

arguments in his brief in opposition to summary judgment and

that    Matthews’       attorney     actually         defended          them    at   the   first

hearing.        J.A. 588-90.         In addition, at the second hearing,

Matthews’       attorney     did    not    object          to    the     court’s     questions

related to his state law claims or ask for additional time to

respond to them; rather, he answered them.                               J.A. 639-40.        The

district       court,     therefore,       did      not    abuse        its     discretion   by

ruling    on    the     Officers’    motion          for    summary       judgment      without

further notice.

                                               15
                                    IV.

     For   the   reasons   stated   above,   we   affirm   the   district

court’s decisions.

                                                                 AFFIRMED




                                    16
