NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0313n.06

Case No. 18-5968

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOE ALLEN EVANS; LINDA EVANS,

Plaintiffs-Appellants,

v.

JOHN KIRK, in his official capacity as Martin 

County Sheriff and in his individual capacity; 

PAUL D. WITTEN, in his official capacity as 

Martin County Deputy Sheriff and in his 

individual capacity; MARTIN COUNTY 

SHERIFF’S OFFICE; MARTIN COUNTY, 

KY.,

Defendants-Appellees.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

KENTUCKY 

BEFORE: NORRIS, CLAY, and SUTTON, Circuit Judges.

SUTTON, Circuit Judge. Police searched Joe and Linda Evans’s business and arrested 

them when the officers found hydrocodone pills, cash, and a stolen gun. The State brought charges 

against them that were later dismissed. The Evanses filed this § 1983 action against John Kirk and 

Paul Witten, two county police officers involved in the case. The district court granted the officers’ 

motion for summary judgment. We affirm.

Joe and Linda own a pawn shop in Inez, Kentucky. One morning in February 2016, Officer 

Kirk saw John Dials walk into the pawn shop. Kirk thought Dials had an outstanding arrest 
Case No. 18-5968, Evans et al. v. Kirk et al.

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warrant, prompting Kirk to walk into the shop and ask Dials to come outside while Kirk ran a 

warrant check. Dials complied, but before long he began to sweat and looked nervous. When

Kirk asked Dials if something was wrong, Dials proceeded to hand Officer Kirk 22 oxycodone 

pills and 4 suboxone strips. Dials didn’t have a prescription for either type of drug. Officer Witten 

arrived on the scene and arrested Dials for public intoxication. Dials told Witten he had bought 

the pills from Gar Maynard, a pawn shop employee. When Dials gave Maynard $460, he 

explained, Maynard walked to the back of the store and returned with the goods.

With this information in hand, Witten secured a warrant to search the pawn shop. There 

police found 21 hydrocodone pills in a plastic bag, 7 other pills in the bathroom trash can, over 

$20,000, and a stolen gun. Witten arrested Joe and Linda for possessing and trafficking controlled 

substances. A grand jury indicted Joe on the trafficking charge, but the parties later agreed to 

dismiss the case. The grand jury returned a no true bill as to Linda, and the parties agreed to 

dismiss her case.

The Evanses filed this § 1983 action against Kirk and Witten, alleging that they violated 

the Fourth (and Fourteenth) Amendment by unreasonably searching the pawn shop, arresting them

without probable cause, and maliciously prosecuting them. The district court granted the officers’ 

motion for summary judgment.

On appeal, the Evanses focus on the malicious prosecution claim. The rules of the road for

this claim are straightforward. The officers are entitled to qualified immunity unless they violated 

the Evanses’ clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982). “[O]nly when his deliberate or reckless falsehoods” lead to a prosecution without probable 

cause may an officer be held liable for malicious prosecution under the Fourth Amendment. 

Newman v. Township of Hamburg, 773 F.3d 769, 771–72 (6th Cir. 2014). The officer must have 
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“made, influenced, or participated in” the prosecution decision, Webb v. United States, 789 F.3d 

647, 659 (6th Cir. 2015), which requires active involvement or affirmative aid, Sykes v. Anderson, 

625 F.3d 294, 308 n.5 (6th Cir. 2010).

The Evanses lack proof that the officers maliciously prosecuted them. Start with Officer 

Kirk. No evidence shows that he made any false statements related to the plaintiffs. At most he 

played a passive role in the case after Dials handed him the oxycodone and suboxone.

What about Officer Witten? No evidence shows that he made any false statements that 

affected the decision to prosecute Joe or Linda. Witten apparently testified in front of Joe’s grand 

jury, but the Evanses have not identified any false statements he made there. Perhaps most 

importantly, the Evanses do not dispute the authenticity or reliability of any of the evidence the 

officers found while searching the pawn shop, which formed the basis for the prosecutions.

Hold on, the Evanses urge: Witten misled the official who issued the search warrant by 

failing to note Dials’s intoxicated status and lack of reliability as an informant in the warrant 

affidavit. Even assuming that amounts to a reckless falsehood, a point we need not decide, it 

makes no difference to this claim. To prove malicious prosecution (as opposed to an illegal search 

or false arrest), the Evanses must show that Witten’s statements played a part beyond the search 

of the pawn shop or even their initial arrest. See Sykes, 625 F.3d at 316; see also Gardner v. Evans, 

920 F.3d 1038, 1065 (6th Cir. 2019). They haven’t. The statements in question may bear on the

reliability of the information supporting the search warrant. But there’s no evidence they played 

a part in the decision to prosecute Joe and Linda for the controlled substances found in the shop.

We affirm.