                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 08-2005


HOPE DORN,

                 Plaintiff - Appellee,

           v.

THE TOWN OF PROSPERITY,

                 Defendant – Appellant,

           and

CRAIG NELSON, individually as an officer with the Town of
Prosperity Police Department,

                 Defendant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson. R. Bryan Harwell, District Judge.
(8:06-cv-02571-RBH)


Argued:   December 1, 2009                  Decided:   March 18, 2010


Before KING and SHEDD, Circuit Judges, and John Preston BAILEY,
Chief United States District Judge for the Northern District of
West Virginia, sitting by designation.


Reversed by unpublished opinion.        Judge Bailey      wrote   the
opinion, in which Judge King and Judge Shedd joined.
Andrew Lindemann, DAVIDSON & LINDEMANN, PA, Columbia, South
Carolina, for Appellant.      John Christopher Mills, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
BAILEY, Chief District Judge:

      The Town of Prosperity, South Carolina, appeals a judgment

rendered against it on the basis that there can be no false

arrest under South Carolina law where the arrest was effectuated

pursuant     to   a   facially      valid      arrest       warrant.      We    agree   and

reverse the judgment.



                                            I.

      This    case      arises     out   of       the   arrest     of   the     plaintiff-

appellee, Hope Dorn, on May 25, 2005, on a warrant for the

municipal     offense         of   obstructing          a    police     officer.        The

affidavit for the warrant, which was sworn by Defendant Officer

Craig Nelson of the Town of Prosperity Police Department, cites

an incident that occurred two days prior, on May 23, 2005.                               On

that evening, Dorn had been to dinner with her fiancee, Kevin

Lathrop, and her child.             While returning to her residence, Dorn

and   Lathrop     had    an    argument.          Dorn      and   her   child    left   the

vehicle and began to walk home.                     Lathrop continued, at a high

rate of speed, in the direction of Dorn’s residence, had an

altercation with Dorn’s neighbors, and then left the area after

spinning his tires and briefly losing control of his vehicle.

The   neighbors         contacted        the       Town      of    Prosperity      Police

Department, and Officer Nelson responded.

                                              3
       At the scene, Dorn approached Officer Nelson and spoke with

him.    What occurred between Dorn and Nelson is disputed.                       Dorn

testified that she identified herself to Officer Nelson and that

she identified Lathrop as the probable driver of the vehicle.

Dorn further testified that Lathrop called her cell phone and

that she requested Lathrop to return to the scene to speak with

Nelson.       In   contrast,      Nelson    testified      that    Dorn   refused    to

identify      herself    beyond    giving        her   first   name    and   place   of

employment.        Nelson further testified that Dorn spoke to Lathrop

by cell phone and advised him not to return to the scene or he

would be arrested.

       On the following day, May 24, 2005, Officer Nelson sought

an   arrest    warrant    on   the   municipal         offense    of   obstructing    a

police officer.         This warrant was issued by the Municipal Judge.

Dorn was subsequently arrested by deputies with the Newberry

County Sheriff’s Department.           The charge was later nolle prossed

by the Police Chief.



                                           II.

       Ms. Dorn filed this action for money damages in district

court bringing three causes of action: (1) a 42 U.S.C. § 1983

Fourth Amendment claim against Defendant Nelson, individually,

for arresting and prosecuting Dorn without probable cause; (2) a

                                           4
pendent    common       law    false      arrest       claim        against   Defendant-

Appellant the Town of Prosperity (“Town”) for arresting Dorn

without probable cause; and (3) a pendent common law malicious

prosecution claim         against the Town and/or Nelson, individually,

for   prosecuting       Dorn   on   the    charge       of     obstructing      a    police

officer.       However, prior to submission of the case to the jury,

Dorn withdrew her malicious prosecution claim.                           With regard to

the two remaining claims, the jury returned a verdict in favor

of Dorn on the common law false arrest claim and in favor of

Nelson on the Fourth Amendment claim.                   Judgment in the amount of

$23,500.00 was entered against the Town.                       Thereafter, the Town

filed a post-trial motion for judgment as a matter of law on the

common law false arrest claim.                   The motion was denied by the

district court.         The Town filed a timely appeal.



                                          III.

      Inasmuch as the arresting officer was found not liable on

the   federal    civil     rights   claim,       the    issue       presented       by    this

appeal    is    whether    the   arrest,       pursuant        to    a   facially        valid

warrant, can satisfy the state law requirements of false arrest.

      “At common law, allegations that a warrantless arrest or

imprisonment      was    not   supported       by   probable         cause    advanced       a

claim of false arrest or imprisonment. ...                      However, allegations

                                           5
that an arrest made pursuant to a warrant was not supported by

probable cause, or claims seeking damages for a period after

legal process issued, are analogous to the common-law tort of

malicious prosecution.”     Porterfield v. Lott, 156 F.3d 563, 568

(4th Cir. 1998) (quoting Brooks v. City of Winston-Salem, 85

F.3d 178, 181-82 (4th Cir. 1996)).

     In Brooks, an action under 42 U.S.C. § 1983, “we held that

a public official cannot be charged with false arrest when he

arrests a defendant pursuant to a facially valid warrant.             At

most, such an official can be pursued through a cause of action

for malicious prosecution.”    Porterfield, 156 F.3d at 568.

     The   distinction   between    malicious   prosecution   and   false

arrest in this situation is whether the arrest was made pursuant

to a warrant.    “As a general rule, an unlawful arrest pursuant

to a warrant will be more closely analogous to the common law

tort of malicious prosecution.          An arrest warrant constitutes

legal process, and it is the tort of malicious prosecution that

permits damages for confinement pursuant to legal process.             On

the other hand, wrongful warrantless arrests typically resemble

the tort of false arrest.”         Calero-Colon v. Betancourt-Lebron,

68 F.3d 1, 4 (1st Cir. 1995) (citing Singer v. Fulton County

Sheriff, 63 F.3d 110, 115-16 (2d Cir. 1995)).



                                    6
     In    a    2008     opinion,    the    South        Carolina     District    Court

reiterated the standards for a cause of action for false arrest

under 42 U.S.C. § 1983:

     A claim that a warrantless arrest is not supported by
     probable cause constitutes a cause of action for false
     arrest as opposed to malicious prosecution.         See
     Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th
     Cir. 1996).    As a result, a false arrest claim must
     fail where it is made “pursuant to a facially valid
     warrant.” Porterfield v. Lott, 156 F.3d 563, 568 (4th
     Cir. 1998); see also Brooks, 85 F.3d at 181.      It is
     undisputed that the plaintiff's arrest was made
     pursuant to a facially valid warrant.     The plaintiff
     has not challenged either the fact that a magistrate
     issued a warrant for his arrest or that it was
     facially valid.     In fact, he has confirmed that a
     warrant was so issued and that he was arrested
     pursuant to it. At most, therefore, the plaintiff can
     allege   only   “a   cause  of  action  for   malicious
     prosecution” based on an alleged lack of probable
     cause for seeking and issuing the warrant in the first
     instance.    Porterfield, 156 F.3d at 568; see also
     Brooks, 85 F.3d at 181 (“However, allegations that an
     arrest made pursuant to a warrant was not supported by
     probable cause, or claims seeking damages for the
     period after legal process issued, are analogous to
     the common-law tort of malicious prosecution.”)

Medows v. City of Cayce, No. 3:07-409, 2008 WL 2537131 at *3

(D.S.C.    June    24,    2008)     (emphasis       in     original).       See    also

Richmond   v.     Pieterse,    No.    8:08-3173,         2009    WL   2781972     at   *4

(D.S.C. Aug. 27, 2009).

     South     Carolina     appears    to       agree.      In   1900,   the     Supreme

Court of South Carolina held that false arrest proceeds upon the

theory that the plaintiff has been arrested without authority of


                                            7
the law, while an action for malicious prosecution proceeds upon

the theory that the plaintiff has been lawfully arrested under a

warrant charging a criminal offense, but that such prosecution

is malicious and without probable cause.          Whaley v. Lawton, 35

S.E. 741, 743 (1900) (citing McConnell v. Kennedy, 7 S.E. 76

(1888)).

     In Bushardt v. United Inv. Co., 113 S.E. 637 (1922), the

South Carolina Supreme Court stated that:

     It has been definitely decided in this jurisdiction
     that where one is “properly arrested by lawful
     authority,” “an action for false imprisonment cannot
     be maintained against the party causing the arrest.”
     Barfield v. Coker, 73 S. C. 192, 53 S. E. 170; McHugh
     v. Pundt, 1 Bailey, 441; McConnell v. Kennedy, 29 S.
     C. 187, 7 S. E. 76; Whaley v. Lawton, 62 S. C. 91, 40
     S. E. 128, 56 L. R. A. 649.     If a lawful arrest has
     been improvidently procured, without probable cause,
     the plaintiff's remedy lies in an action for malicious
     prosecution, in which action the necessary element of
     malice may be inferred as a fact from the want of
     probable cause. Graham v. Bell, 1 Nott & McC. 278, 9
     Am. Dec. 687; Stoddard v. Roland, 31 S. C. 344, 9 S.
     E. 1027; Hogg v. Pinckney, 16 S. C. 400; China v. S.
     A. L. Ry. Co., 107 S. C. 179, 92 S. E. 335.

113 S.E. at 639.

     In    the   McConnell   decision,   relied   on   in   Bushardt,   the

Supreme Court of South Carolina had explained:

     It seems to us that the gist of the action for false
     imprisonment is that one has been restrained of his
     liberty without lawful authority; and, where it
     appears that the restraint or imprisonment complained
     of   is  under   lawful  process,  the   action  must
     necessarily fail. It is quite true that one arrested

                                    8
       and restrained of his liberty, even under lawful
       process, may have a cause of action, if it is alleged
       and shown that the prosecution was malicious, and was
       without probable cause, and has terminated; but that
       is a different cause of action, and depends upon
       different allegations and proofs, and the action for
       malicious prosecution must not be confounded with an
       action for false imprisonment.

McConnell, 7 S.E. at 78.

       More than fifty years after Bushardt, the Court of Appeals

held    that    a   claim   of   false     arrest      did   not    lie    where    the

plaintiff was arrested pursuant to a warrant.                      Watkins v. Mobil

Oil    Corp.,   313    S.E.2d    641    (S.C.    Ct.    App.      1984).   The   Court

stated:

       The dispositive rule of law of this case is well
       stated in Bushardt v. United Inv. Co., 121 S.C. 324,
       113 S.E. 637 (1922). In essence this case holds that
       where one is lawfully arrested by lawful authority, an
       action for false imprisonment cannot be maintained
       against the party causing the arrest.

313 S.E.2d at 642.          Accord Manley v. Manley, 353 S.E.2d 312,

314-15    (S.C.       Ct.   App.       1987)    (“Even       if    the     arrest    is

improvidently procured, the wronged party's remedy lies in an

action for malicious prosecution.”).

       In 1985, the Supreme Court of South Carolina abolished the

doctrine of sovereign immunity as it applied to the state and

all    local    subdivisions,      subject      to     certain      qualifications.

McCall v. Batson, 329 S.E.2d 741 (1985).



                                          9
      In     James    v.   Fast    Fare,          Inc.,      685    F.    Supp.      565,    566-67

(D.S.C. 1988), the District Court held that where a person is

arrested by law enforcement personnel pursuant to a facially

valid     warrant,     “there      can       be    no       cause    of    action      for       false

imprisonment         asserted     against          the      party     causing        the    arrest,

because the arrest has been made pursuant to lawful authority,”

citing Watkins, supra.

      Ms.     Dorn    relies      upon    Gist         v.    Berkeley      County      Sheriff’s

Dept., 521 S.E.2d 163 (1999).                     This is a per curiam opinion from

the South Carolina Court of Appeals, in which the court reversed

a    grant    of      summary      judgment            in     favor       of    the    Sheriff’s

Department.          The decision focused on the standard for finding

liability under the South Carolina Tort Claims Act, § 15-78-

60(3), * rather than the elements of a valid claim for false

arrest.      In its decision, the Court of Appeals relied upon two

cases, both of which cases involved warrantless arrests; Jones

v.   City    of    Columbia,      389    S.E.2d          662    (1990),        and    Wortman       v.

Spartanburg,         425   S.E.2d       18    (1992).               The   decision         did    not
      *
       “In 1986, the legislature enacted the South Carolina Tort
Claims Act, S.C. Code Ann. §§ 15-78-10 to -200 (Supp. 1997),
which waives immunity while also providing specific, enumerated
exceptions limiting the liability of the state and its political
subdivisions in certain circumstances. The Tort Claims Act ‘is
the exclusive civil remedy available for any tort committed by a
governmental entity, its employees, or its agents except as
provided in § 15-78-70(b).’” Wells v. City of Lynchburg, 501
S.E.2d 746, 749 (S.C. Ct. App. 1998).

                                                  10
discuss,   nor     could    the      Court    of    Appeals       overrule,    the    long-

standing precedent in South Carolina that there can be no claim

for false arrest where the arrest is effectuated pursuant to a

facially valid warrant.

     The   subsequent         case    of     Law    v.    South    Carolina       Dept.      of

Corrections, 629 S.E.2d 642 (2006), falls into the same trap.

The decision, relying on Gist, finds that the fundamental issue

in determining the lawfulness of an arrest is whether there was

probable    cause      to   make     the     arrest.        This     is    true    in     the

situation of a warrantless arrest.                   Again, the decision did not

discuss,   let     alone      overrule,       the    long-standing         precedent         in

South Carolina that there can be no claim for false arrest where

the arrest is effectuated pursuant to a facially valid warrant.

Furthermore,     in    Law,    the     Court       reiterated      the    elements      of    a

false arrest claim.           The first element enumerated is “that the

defendant restrained the plaintiff.”                     629 S.E.2d at 651.          In the

present    case,      the   Town     of    Prosperity       did     not    restrain       the

plaintiff.      Rather, the plaintiff was arrested and restrained by

the Newberry County Sheriff’s Department.

     Subsequently,          the      South     Carolina       District        Court,         in

Mitchell   v.    Cannon,      No.     2:07-cv-3259,         2009    WL    824202     at      *5

(D.S.C.    March      26,   2009),     stated        that   “a     plaintiff      may     not

maintain a cause of action for false imprisonment where he has

                                             11
been   arrested    by   law   enforcement       pursuant    to   a   valid   arrest

warrant.     Jones v. City of Columbia, 389 S.E.2d 662, 663 (S.C.

1990) (‘An action for false imprisonment cannot be maintained

where one is arrested by lawful authority.’).”

       Finally, in Campbell v. McIlwain, No. 8:09-1156, 2009 WL

2176241 (D.S.C. July 20, 2009), the District Court reiterated

the rule that there can be no claim for false arrest where a

defendant is arrested pursuant to a facially valid warrant and

noted that “[i]t is not the duty of the arresting officer to

assess guilt or innocence, but merely to serve the warrant.”                     In

its opinion, the Court added that “[a]n arresting officer is

generally    entitled    to    rely   on   a     facially    valid    warrant    in

effecting an arrest.” Id. At *4.

       Based upon the foregoing precedent, we follow the South

Carolina rule that there can be no claim for false arrest where

a   person   is   arrested    pursuant     to    a   facially    valid   warrant.

Since Ms. Dorn was arrested pursuant to a facially valid warrant

her judgment against the Town of Prosperity for false arrest

must be reversed.

                                                                         REVERSED




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