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

. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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, cas h, 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 officer s’ 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 arrestCase No. 1 8

- 5968 , Evans et al. v. Kirk et al.

2

warrant, prompting Kirk to walk int o 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 o xycodone pills and 4 sub oxone 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 Ma ynard $460, he explained, Maynard walked to the back of the store and returned with the goods

. With th is 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 possessin g and trafficking controlled
substance s
. A grand jury indicted Joe on the traffickin g charge , but the parties later agreed to dismiss the case. The grand jur y 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, arr est ing 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 falseho ods” 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 haveCase No. 1 8

- 5968 , Evans et al. v. Kirk et al.

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“made, influenced, or partici pated 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 maliciou sly prosecuted them

. Start with Officer
Kirk. N o evidence shows that he made any false statements related to the plaintiffs

. At most he
p layed a passive role in the case after Dials handed him the oxycodone and suboxone

. What about Officer Witten ? No evidence sho ws 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 importan tly, the Evanses do n o t dispute the authenticity o r reliability of any of the evidence the
officers found while searching the pawn shop, which formed the basis for th e 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 reliab ility as an informant in the warrant
affidavit

. E ven assuming that amounts to a reckless falsehood, a point we need not decide, it
mak es 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 have n’t. Th e statements in question may bear on the reliability of the information supporting the search warrant . B ut there ’ s no evidence the y played a part in the decisi on to prosecute Joe and Linda for the controlled substance s found in the shop.
W e affirm.