Joe Allen Evans; Linda Evans v. John Kirk

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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

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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.

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