USCA4 Appeal: 25-1186 Doc: 49 Filed: 12/02/2025 Pg: 1 of 7

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 25-1186

LEON BARCLEY STUSALITUS, An Individual,

Plaintiff - Appellant,

v.

ANGELIQUE ORTIZ, a/k/a A. M. Ortiz; KELVIN WRIGHT, In his supervisory capacity as Chief of Police,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jamar Kentrell Walker, District Judge. (2:24-cv-00202-JKW-LRL)

Submitted: September 22, 2025 Decided: December 2, 2025

Before KING, RUSHING, and BENJAMIN, Circuit Judges.

Affirmed by unpublished opinion. Judge Benjamin wrote the opinion, in which Judge King and Judge Rushing joined.

ON BRIEF: Matthew J. Weinberg, INMAN & STRICKLER, P.L.C., Virginia Beach, Virginia, for Appellant. Melissa Hamann, Deputy City Attorney, Adam J. Lantz, Assistant City Attorney, Office of the City Attorney, CITY OF CHESAPEAKE, Chesapeake, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 25-1186 Doc: 49 Filed: 12/02/2025 Pg: 2 of 7

DEANDREA GIST BENJAMIN, Circuit Judge:

Leon Barcley Stusalitus sued Officer Angelique Ortiz and Chief of Police Kelvin

Wright (in his supervisory capacity) for malicious prosecution. The district court granted

the defendants’ motion for summary judgment. We hold that the district court did not err

by granting the defendants’ summary judgment motion.

I.

Stusalitus’ former partner Alaina Cmelik went to a Chesapeake Police Department

station to make a report against him for three separate incidents of alleged abduction,

occurring on July 22, August 12, and August 15 of 2021. Ortiz took Cmelik’s statement

and then walked her to the magistrate judge’s office. Cmelik presented an affidavit to the

magistrate judge, and the magistrate judge found that probable cause existed to issue arrest

warrants for three counts of felony abduction. Stusalitus was arrested on those warrants.

Stusalitus eventually accepted a plea deal, in which he agreed to a two-year no-contact

protective order in exchange for the prosecution to nolle prosequi 1 the charges against him.

After accepting the plea deal, Stusalitus filed a complaint with the Chesapeake

Police Department. The police department investigated Stusalitus’ allegations and

determined that Ortiz should have first elevated the felony abduction charges to its criminal

investigations section before going to the magistrate judge. The department sent a letter to

1 “[A] nolle prosequi is a discontinuance which discharges the accused from liability on the indictment to which the nolle prosequi is entered.” Miller v. Commonwealth,

(Va. 1977).

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Stusalitus informing him that his complaint had been investigated, and that the matter had

been handled administratively.

Stusalitus then filed a complaint in federal district court, claiming that the

defendants maliciously prosecuted him. The defendants filed a motion for summary

judgment, and the district court ultimately granted the motion and dismissed the malicious

prosecution claim. The district court reasoned that Stusalitus did “not present any evidence

to contradict the factual allegations in [Cmelik’s] affidavit that was presented to the

magistrate.” J.A. 80. 2

We agree and affirm the district court. We have jurisdiction pursuant to

, as this is an appeal of a final decision from the United States District Court for the

Eastern District of Virginia.

II.

“We review a district court’s grant of summary judgment de novo.” Bhattacharya

v. Murray,

(4th Cir. 2024) (citing Guthrie v. PHH Mortg. Corp.,

(4th Cir. 2023)).

A.

To state a claim of malicious prosecution, Stusalitus must show that (1) the

defendants seized him “ ‘pursuant to legal process that was not supported by probable

2 Citations to “J.A.” refer to the joint appendix filed by the parties. The J.A. contains the record on appeal from the district court. Page numbers for citations to the J.A. utilize the “JA#” numbering at the bottom of the page on each document.

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cause, and (2) that the criminal proceedings have terminated in [his] favor.’ ” Durham v.

Horner,

(4th Cir. 2012) (internal quotation marks omitted & emphasis

added). A reviewing court generally accords “great deference” to a magistrate judge’s

determination of probable cause. United States v. Leon,

(1984). We

should decline “to defer only when the finding was not supported by substantial evidence

in the record or when the basis of the determination was a knowingly or recklessly false

affidavit.” United States v. Davis,

(4th Cir. 2024) (citation omitted). 3

The affidavit on which a magistrate judge relies is also entitled to a “presumption of

validity,” and a plaintiff who seeks to overcome that presumption must raise the possibility

that information therein is false, with “more than conclusory” allegations. Franks v.

Delaware,

(1971).

B.

Stusalitus presents two main arguments on appeal—both fail because he cannot

show that his arrest was not supported by probable cause.

i.

First, he asserts that under Virginia law, a magistrate judge may only issue a felony

arrest warrant based on a civilian complaint if it is first authorized by the Commonwealth’s

3 Stusalitus seems to argue that the level of deference given to a magistrate judge is higher for search warrants, and thus United States v. Davis,

(4th Cir. 2024), is inapplicable to the arrest warrants here. Appellant’s Br. (ECF No. 12) at 6–7. That is not true. The Fourth Circuit has routinely used the standard in Davis to review a magistrate judge’s finding of probable cause for arrest warrants. See, e.g., United States v. Clenney,

(4th Cir. 2011) (citing Franks v. Delaware,

, 155–56, 171 (1971)); see also Cahaly v. Larosa,

(4th Cir. 2015).

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Attorney or by a law enforcement agency having jurisdiction over the alleged offense. See

(2021). This argument is irrelevant. While the department

conceded that Ortiz should have elevated the charges to its investigations section, the first

prima facie element to meet a malicious prosecution claim is whether the person was

arrested without probable cause—not whether the arrest warrant itself was properly issued.

Whether the arrest warrants had proper authorization has no bearing on whether the

magistrate judge had probable cause to issue the warrants.

ii.

Second, Stusalitus argues that the district court overlooked “clear” evidence

contradicting Cmelik’s affidavit. The evidence that Stusalitus points to are pictures of

Cmelik’s diary entries that he attached to his summary judgment opposition brief. But the

diary entries are anything but clear.

A threshold issue with the diary entries is authentication. Stusalitus fails to swear

to the authenticity of the entries or even attach them to an affidavit or declaration.

Unauthenticated evidence presented in such an incautious way should not be considered.

See Orsi v. Kirkwood,

(4th Cir. 1993) (“To be admissible at the summary

judgment stage, ‘documents must be authenticated by and attached to an affidavit. . . . ’ ”

(quoting 10A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2722,

at 58–60 (1983 & 1993 Supp.))); see also FED. R. CIV. P. 56(c)(1)(A). “In particular, a

letter must be attached to an affidavit and authenticated by its author in the affidavit or a

deposition.” Orsi,

(internal quotations omitted).

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Furthermore, the diary entries do not show that Cmelik’s affidavit was false. Most

of the entries do not include any dates. There is an entry that is dated July 19, 2021, but

that is three days before Stusalitus allegedly abducted Cmelik. Stusalitus also does not

point to any one statement in Cmelik’s affidavit that is contradicted due to the attached

diary entries. And Stusalitus’ conclusory allegations that the affidavit is “entirely illogical”

cannot overcome the presumption that the affidavit on which the magistrate judge relied

was valid. Appellant’s Br. (ECF No. 12) at 10 (hereinafter “Opening Br.”). 4

We could find that probable cause was lacking if Stusalitus made a showing that “a

false statement knowingly and intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit.” Franks, 438 U.S. at 155–56. Stusalitus

fails to do this, arguing instead that Ortiz “recklessly obtained the felony abduction

warrants . . . without investigating the statements made by Cmelik.” Opening Br. at 9.

Even if he made a successful showing that portions of the affidavit were false, we would

still need to determine whether the affidavit, without the false statements, would warrant a

probable cause finding. See Cahaly v. Larosa,

(4th Cir. 2015); see also

Franks,

. But without any argument or evidence that undermines the

veracity of the affidavit itself, the court cannot undergo that analysis.

* * *

4 Page numbers for citations to ECF documents utilize the page numbers in the red header on each document.

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Accordingly, Stusalitus fails to show a genuine dispute of material fact regarding

whether his arrest was supported by probable cause. The judgment of the district court is

thus

AFFIRMED.

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