Pachaly v. City of Lynchburg

• Decision Date: 02 March 1990
• Docket Number: No. 88-3193,88-3193
• Parties: Robert PACHALY, Jr., Plaintiff-Appellant, v. CITY OF LYNCHBURG; R.D. Viar; William G. Petty, Defendants-Appellees, and Commonwealth of Virginia, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

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897 F.2d 723 Robert PACHALY, Jr., Plaintiff-Appellant,
v.
CITY OF LYNCHBURG; R.D. Viar; William G. Petty, Defendants-Appellees,
and
Commonwealth of Virginia, Defendant. No. 88-3193. United States Court of Appeals,
Fourth Circuit. Argued April 13, 1989.
Decided March 2, 1990.

Page 724

Clifford Lee Harrison (Stone & Hamrick, P.C., Radford, Va., on brief), for plaintiff-appellant.

William Fain Rutherford, Jr. (John L. Walker, Jr., Elizabeth K. Dillon, Woods, Rogers & Hazlegrove, Roanoke, Va., on brief), Walter Clyde Erwin, III (William M. Phillips, Lynchburg, Va., City Attorney's Office, A. David Hawkins, Overbey, Overbey & Hawkins, Rustburg, Va., on brief), for defendants-appellees.

Before RUSSELL and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

DONALD RUSSELL, Circuit Judge:

The appellant, Robert Pachaly, Jr., filed this action pursuant to the provisions of 42 U.S.C. Sec. 1983 against the City of Lynchburg, Virginia, Commonwealth's Attorney for the City of Lynchburg William G. Petty, R.D. Viar, a Lynchburg police officer, and the Commonwealth of Virginia. ¹ The complaint alleged that the named defendants converted property and violated appellant's civil rights during a search of his radio station. Following discovery, the defendants filed motions to dismiss. The district court, pursuant to the provisions of Fed.R.Civ.P. 12(c), treated the motions as a motion for summary judgment, as matters outside the pleadings were considered. 696 F.Supp. 180.

Summary judgment in favor of the City of Lynchburg was granted because the district court found that the appellant had failed to present any evidence of a municipal policy adopted in violation of Section 1983. The court found that Petty was immune from liability and that there was insufficient evidence to sustain the cause against Viar. ² Pachaly now appeals from the grant of summary judgment. We affirm.

I.

The essential facts pertinent to this appeal are as follows: The appellant was the sole owner of radio station WLVA in

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Lynchburg. In March of 1986 the appellant was indicted on two counts of larceny from the Commonwealth of Virginia, one count of larceny from an individual, and one count of assault with a motor vehicle. Thereafter, a warrant was issued for the appellant's arrest and a Lynchburg magistrate issued a warrant authorizing a search for relevant books, records, and receipts contained in the offices of WLVA. The warrant was executed by various law enforcement officials including R.D. Viar and William Petty. At that time, the appellant was arrested, and approximately ten boxes of WLVA documents were taken. Although the officers conducting the search attempted to limit their search to those items authorized in the search warrant, a small envelope containing jewelry belonging to the appellant was also seized. This envelope was located inside a file containing WLVA business records and was subsequently returned to the appellant without incident.

Prior to his criminal trial, counsel for the appellant moved to suppress and to return all items seized at WLVA. Counsel contended that the search exceeded the scope of the warrant and was nothing more than a mere "fishing expedition" for evidence relating to crimes not contemplated when the warrant issued. After the matter was briefed and argued, the court found the search to be reasonable and denied the motion to suppress.

In August of 1987, the appellant was tried and acquitted on the charge of larceny from the Commonwealth of Virginia. In December of the same year, the charge against the appellant of larceny from an individual was nol prossed, but the appellant was convicted of assault with a motor vehicle.

The appellant filed this action pursuant to the provisions of 42 U.S.C. Sec. 1983 in February of 1988 alleging that the search of WLVA was unreasonable and excessive and that the defendants converted WLVA property in violation of his constitutional rights.

II.

Because this was a decision based solely on the pleadings and supporting materials, our review of the record before us is de novo, and we are constrained by the standard employed by the district court. Fed.R.Civ.P. 56(c). Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987). In moving for a grant of summary judgment, the defendants bear the burden of showing that no genuine issue of material fact exists and that each is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); De Leon v. St. Joseph Hospital, Inc., 871 F.2d 1229, 1233 (4th Cir.1989). ³ Such a burden may be met by use of "affidavits, exhibits, depositions, and other discovery materials." Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir.1984). By way of affidavit, the defendants have raised the defense of immunity.

"[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts...