Plaintiff is a dentist and he was investigated for alleged sexual molestation of a patient. He was tried and acquitted of the sexual assault, and then sued the police officers involved for malicious prosecution under the Fourth Amendment. The claim fails. The most he alleges is negligence or gross negligence and that the police could have done a better job of investigating, but that doesn’t rise to a Fourth Amendment claim. Turcios v. Carter, No. 4:17CV00773 JLH (E.D. Ark. Jan. 22, 2019):
Here, Turcios has subjected the investigation of these officers and the credibility of the witnesses against him to a withering critique. Nonetheless, his evidence against the officers proves nothing more than negligence or gross negligence. He has presented no evidence that any investigating officer prompted Smith, Melton, or anyone else to make false allegations against him. He has presented no evidence that any officer coerced any witness to testify against him. His evidence points to gaps in the investigation and information that the officers should have pursued but not to intentional or reckless misconduct by the officers. The conduct of the investigating officers does not meet the “shock the conscience” standard.
Turcios alleges and argues that the arrest warrant was not based on probable cause, but he does so only as an element of his malicious prosecution claim; he does not allege or argue his arrest as an independent claim. See Document #3 at 15-17 and Document #68 at 5-39. Cf. Technical Ordnance, 244 F.3d at 647-51; Pace, 201 F.3d at 1054-57. Assuming, however, that he intends to allege a § 1983 claim against Tabitha Carter and Lundy based on an arrest without probable cause, summary judgment still must be granted on that claim. Tabitha Carter prepared an affidavit that accurately reported what she had been told by Smith, Melton, Clifton, and Robertson. She submitted that affidavit to a judge, who found that the affidavit established probable cause. Any arresting officer was entitled to rely on that finding by the judge unless the affidavit was so lacking in indicia of probable cause as to render belief in the legitimacy of the warrant entirely unreasonable. United States v. Leon, 468 U.S. 897, 923, 104 S. Ct. 3405, 3421, 82 L. Ed. 2d 677 (1984). Turcios argues that the good faith exception of Leon does not apply because Tabitha Carter made material misrepresentations or omissions in the affidavit. He does not identify any misrepresentations in the affidavit, nor does he show that she intentionally omitted any material information. Assuming that Turcios alleges as a separate tort that he was arrested without probable cause, the defendants are entitled to summary judgment on that claim.