UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-2570

THOMAS LEE SOWERS,

 Plaintiff – Appellant,

v.

CITY OF CHARLOTTE; DUSTIN WIPPEL; WILLIAM PALLONE; EDWARD 

KAMINSKI,

 Defendants - Appellees.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., District Judge. (3:14-cv-00523-RJC-DCK)

Submitted: May 11, 2016 Decided: September 12, 2016

Before KEENAN and THACKER, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas Lee Sowers, Appellant Pro Se. Richard Harcourt Fulton, 

OFFICE OF THE CITY ATTORNEY, Charlotte, North Carolina, for 

Appellees.

Unpublished opinions are not binding precedent in this circuit.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

Thomas Lee Sowers appeals from the district court’s order 

granting Appellees’ motion for summary judgment in his 42 U.S.C. 

§ 1983 (2012) action, which raised claims of false arrest and 

malicious prosecution. Sowers’ causes of action rested on his 

contention that he was arrested without probable cause for 

trespassing and obstruction of officers. On appeal, Sowers 

asserts that the district court improperly extended the time to 

file a motion for summary judgment and that material issues of 

fact prevented summary judgment on his substantive 

constitutional claims. We affirm.

Initially, we find no error in the district court’s 

extension of time. See Marryshow v. Flynn, 986 F.2d 689, 693 

(4th Cir. 1993) (“When the date specified for filing court 

papers is not jurisdictional, broad discretion is given to the 

trial court to manage its docket.”). With regard to Sowers’

substantive claims, while the district court focused on the 

probable cause for the trespassing arrest, we note that “[w]e 

are, of course, entitled to affirm on any ground appearing in 

the record, including theories not relied upon or rejected by 

the district court.” Scott v. United States, 328 F.3d 132, 137 

(4th Cir. 2003). Because we find that the Defendant officers 

were entitled to qualified immunity, we affirm.
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To state a claim for false arrest or imprisonment under 

§ 1983, a plaintiff must demonstrate that he was arrested 

without probable cause. See Street v. Surdyka, 492 F.2d 368, 

372-73 (4th Cir. 1974) (“[T]here is no cause of action for 

‘false arrest’ under section 1983 unless the arresting officer 

lacked probable cause.”); see also Brown v. Gilmore, 278 F.3d 

362, 367-68 (4th Cir. 2002) (analyzing false arrest claim for 

whether seizure was unreasonable). In addition, “[a] malicious 

prosecution claim under § 1983 is properly understood as a 

Fourth Amendment claim for unreasonable seizure which 

incorporates certain elements of the common law tort.” Evans v. 

Chalmers, 703 F.3d 636, 646 (4th Cir. 2012) (internal quotation 

marks omitted). “To state such a claim, a plaintiff must allege 

that the defendant (1) caused (2) a seizure of the plaintiff 

pursuant to legal process unsupported by probable cause, and 

(3) criminal proceedings terminated in plaintiff’s favor.” Id.

Therefore, the question of whether Appellees violated Sowers’

constitutional rights depends on whether they had probable cause 

to arrest him at the time of his arrest. See Brown, 278 F.3d at 

367 (evaluatingprobable cause in light of officer’s knowledge at 

time of arrest). 

Pursuant to N.C. Gen. Stat. § 14–223, “[i]f any person 

shall willfully and unlawfully resist, delay or obstruct a 

public officer in discharging or attempting to discharge a duty 
4

of his office, he shall be guilty of a Class 2 misdemeanor.” 

The elements of the offense are: 1) that the victim was a public 

officer; 2) that the arrestee knew that the victim was a public 

officer; 3) that the victim was discharging or attempting to 

discharge a duty of his office; 4) that the arrestee resisted, 

delayed, or obstructed the victim in discharging or attempting 

to discharge a duty of his office; and 5) that the arrestee 

acted willfully and unlawfully. North Carolina v. Sinclair, 663 

S.E.2d 866, 870 (N.C. App. 2008). “The general rule is that 

merely remonstrating with an officer . . . or criticizing or 

questioning an officer while he is performing his duty, when 

done in an orderly manner, does not amount to obstructing or 

delaying an officer in the performance of his duties.” North 

Carolina v. Leigh, 179 S.E.2d 708, 713 (N.C. 1971). “Only those 

communications intended to hinder or prevent an officer from 

carrying out his duty are discouraged by [N.C. Gen. Stat. 

§ 14-223].” Burton v. City of Durham, 457 S.E.2d 329, 332 (N.C. 

App. 1995). 

In general, qualified immunity entails a two-step analysis. 

First, the court decides whether violation of a constitutional 

right has been alleged at all. Brown v. Gilmore, 278 F.3d 362, 

367 (4th Cir. 2002) (quoting Saucier v. Katz, 533 U.S. 194, 200 

(2001)). If not, the qualified immunity inquiry ends. Step two 

directs the court to determine whether the right was “clearly 
5

established” at the time of the incident and evaluates whether a 

reasonable officer would have understood that the conduct at 

issue violated that clearly established right. Anderson v. 

Creighton, 483 U.S. 635, 639-40 (1987). But see Pearson v. 

Callahan, 555 U.S. 223, 236 (2009) (holding that court may 

exercise discretion in determining which prong to address 

first). Because qualified immunity turns entirely on objective 

reasonableness, an officer’s subjective intent or state of mind 

is not relevant to the analysis. Park v. Shiflett, 250 F.3d 

843, 853 (4th Cir. 2001). 

In defining a clearly established right, it is not enough 

to cite a general constitutional rule of wide import. Anderson, 

483 U.S. at 639. Rather, “[t]he contours of the right must be 

sufficiently clear that a reasonable official would understand 

that what he is doing violates that right.” Id. at 641. Thus, 

“[t]he relevant, dispositive inquiry in determining whether a 

right is clearly established is whether it would be clear to a 

reasonable officer that his conduct was unlawful in the 

situation he confronted.” Saucier, 533 U.S. at 202.

Accordingly, “‘all [officials] but the plainly incompetent or 

those who knowingly violate the law’ are protected.” 

Porterfield, 156 F.3d at 567 (quoting Malley v. Briggs, 475 U.S. 

335, 341 (1986)). 
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In analyzing whether law enforcement officers have 

qualified immunity in a false arrest claim pursuant to § 1983, 

the issue is not whether probable cause actually exists but 

whether a reasonable officer in the officer’s position would 

have believed he had probable cause to arrest. See id. Courts 

consider all of the circumstances known to the officer at the 

time of the arrest to determine whether there was probable 

cause. Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996). The 

arresting officer’s belief need not be correct or even more 

likely true than false, so long as it is reasonable. Texas v. 

Brown, 460 U.S. 730, 742 (1983). A magistrate’s probable cause 

determination indicates a reasonable officer would believe he or 

she had probable cause to arrest. See Brooks v. City of 

Winston-Salem, 85 F.3d 178, 184 (4th Cir. 1996); Torchinsky v. 

Siwinski, 942 F.2d 257, 261-62 (4th Cir. 1991)(explaining that 

decisions of a state criminal judge and federal district court 

judge both finding probable cause are relevant to qualified 

immunity).

We conclude that the Defendant officers were entitled to 

qualified immunity for their arrest of Sowers for obstructing 

the officers. The officers had direct eyewitness information 

that Sowers was being disorderly and was ejected from a nearby 

restaurant with his daughter and his daughter’s boyfriend. 

While the officers were arresting Sowers’ daughter and her 
7

boyfriend, Sowers approached the officers, asked questions, and 

refused to follow directions. The officers warned Sowers they 

would arrest him if he did not listen to the officers, but he 

refused to cooperate. Given the chaotic scene and Sowers’

confrontational behavior, this information could lead reasonable 

officers to conclude that Sowers was impeding or delaying the 

officers, in violation of the statute. Moreover, the magistrate 

judge held probable cause supported the arrest. In addition, 

the district court held there was likely probable cause to 

arrest Sowers and the officers enjoyed qualified immunity. See

Torchinsky, 942 F.2d at 261-62. Given the totality of the 

circumstances, Defendants’ conduct fell within the range of 

reasonable judgment. Thus, qualified immunity shields them from 

money damages. 

Accordingly, we affirm. We dispense with oral argument 

because the facts and legal contentions are adequately presented 

in the materials before this court and argument would not aid 

the decisional process.

AFFIRMED