#139 Drano Series
Is your claim a
"garden-variety"
malicious prosecution claim
or
a malicious prosecution claim
amenable to Section 1983?
(in both .html and .pdf files)
Excerpt in .pdf
1 "Garden-Variety" and §1983-Sustainable Malicious Prosecution Essentially Gouin is alleging a malicious prosecution claim whereby his substantive and procedural due process rights supposedly were violated.. . . The First Circuit has held that: While Albright, \1/ and later Roche, 81 F.3d 249, 267 (1st Cir. 1996), clearly state that "garden-variety" malicious prosecution claims are appropriately left to state courts, equally clear is that Albright and its progeny left space for garden visitors to drop seeds for some cases to grow in soil under the §1983 sky.The appellant’s allegations of malicious prosecution cannot salvage his
§1983 claim. The law is settled that a garden-variety claim of malicious
prosecution garbed in the regalia of §1983 must fail. There is no substan-
tive due process right under the Fourteenth Amendment to be free from
malicious prosecution, see Albright v. Oliver, 510 U.S. 266, ---- - ----, 114
S.Ct. 807, 810-19, 127 L.Ed.2d 114 (1994) (plurality op.); . . . and the
availability of a plainly adequate remedy under Massachusetts law . . .
defeats the possibility of a procedural due process claim here, . . .
Consequently, the appellant cannot rewardingly predicate his §1983 claim
on malicious prosecution simpliciter.
. . ."We note as an initial matter that Meehan’s §1983 malicious prosecution claim is not properly based on either a procedural or substantive due process violation. A §1983 claim for malicious prosecution as a deprivation of procedural due process is barred where, as here, the state’s tort law recognizes a malicious prosecution cause of action.... Further, ‘[t]here is no substantive due process right under the Fourteenth Amendment to be free from malicious prosecution.’. . . ("Albright would appear virtually to foreclose reliance on substantive due process as the basis for a viable malicious prosecution claim under section 1983....").The plaintiff simply cannot manufacture a federal civil rights claim under §1983 against James under the guise of an alleged malicious prosecution claim.
From pages 12-13 of Report and Recommendation (#66) [internal citations omitted) "To bridge the gap [between a garden-variety malicious prosecution claim and malicious prosecution claim sustainable under §1983],\2/ the plaintiff also must show a deprivation of a federally-protected right." Nieves v. McSweeney, 241 F.3d 46, 2001.C01.0000068 at ¶41 <http://www.versuslaw.com> (1st Cir. 2001),\3/ citing Meehan v. Town of Plymouth, 167 F.3d 85, 88 (1st Cir. 1999), and Roche, 81 F.3d at 254.
Albright would appear virtually to foreclose reliance on substantive due process as the basis for a viable malicious prosecution claim under section 1983 superseding even Torres ' very limited tolerance of reliance on substantive due process in this area. Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 1994.C01.40418 at ¶17 <http://www.versuslaw.com> (1st Cir. 1994). The operative words are "would appear," which confirm the possible existence of exceptions. Alicea v. Caban\4/ defines how that space must be treated for a § 1983 case to grow in the garden:In order to transform a garden-variety malicious prosecution claim into a claim that is actionable under 42 U.S.C. § 1983, a plaintiff must establish both (1) action under color of state law, and (2) a deprivation of a constitutional right in consequence of that action. Alicea, 1999.C01.42127 at ¶15 <http://www.versuslaw.com>, citing Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253-54 (1st Cir. 1996). Alicea was not successful, but not because a malicious prosecution case was not allowed under §1983. He did have a constitutional claim: it arose out of the Fifth Amendment, which he did invoke, but his complaint failed to "allege a constitutional deprivation." Id.. . . Lugo's complaint contains four statements of claim. Two do not articulate separate causes of action, but merely contain recitals of damages allegedly incurred. Of the other two, the first alleges an abridgment of Lugo's constitutional rights, and the second alleges violations of local law (specifically, Articles 1802 and 1805 of Puerto Rico's Civil Code). Alicea, 1999.C01.42127 at ¶13. The appeals court in Alicea also noted that the Fifth Amendment guarantees both procedural due process and substantive due process [id.], but because he failed to invoke the amendment, neither Fifth Amendment guaranty was able to help him.Like Pablo Lugo Alicea’s, Gouin’s §1983 claim in Count I also arose out of the Fifth Amendment, which he did invoke and which did guarantee him, too, both procedural due process and substantive due process, but unlike Alicea, Gouin did allege the deprivation of constitutional rights in consequence of the defendants’ actions\5/ [See, e.g., Compl. ¶ 48]. "The provisions of the Fifth Amendment apply to the actions of government officials in [the Commonwealth] by operation of the Fourteenth Amendment." Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 1994.C01.40418 at ¶24 <http://www.versuslaw.com> (1st Cir. 1994).
Where Dori and DiPiano acted "‘under color of’ state law when [they] engaged in a conspiracy with state officials to deprive [Gouin] of federal rights," the provisions of the Fifth Amendment also applied to Dori and DiPiano by operation of the Fourteenth Amendment. "[A]n otherwise private person acts ‘under color of’ state law when engaged in a conspiracy with state officials to deprive another of federal rights." Tower v. Glover, 467 U.S. (Or.) 914, 920 (1984), quoting Dennis v. Sparks, 449 U.S. 24, 27-28 (1980).
In my opinion, the formal commencement of a criminal proceeding is quintessentially this type of state action. The initiation of a criminal prosecution, regardless of whether it prompts an arrest, immediately produces "a wrenching disruption of everyday life." Young v. United States ex rel. Vuitton et Fils, 481 U.S. 787, 814 (1987). Every prosecution, like every arrest, "is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." United States v. Marion, 404 U.S. 307, 320 (1971). In short, an official accusation of serious crime has a direct impact on a range of identified liberty interests. That impact, moreover, is of sufficient magnitude to qualify as a deprivation of liberty meriting constitutional protection.*fn9 Albright v. Oliver, 510 U.S. 266, 1994.SCT.40853 at ¶80 <http://www.versus-law.com> (1994) (Stevens, J., with whom Blackmun, J. joined, dissenting). The dissenting justices continued:I can think of few powers that the State possesses which, if arbitrarily imposed, can harm liberty as substantially as the filing of criminal charges. Albright, 510 U.S. 266, __, 1994.SCT.40853 at ¶119 (dissent)[N]otwithstanding the possible availability of a state tort action for malicious prosecution, § 1983 provides a federal remedy for the constitutional violation alleged by petitioner. Monroe v. Pape, 365 U.S. 167, 183 (1961) ("The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked") (overruled in part not relevant here, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 664-689 (1978)). Albright, 510 U.S. 266, __, 1994.SCT.40853 at ¶123 (dissent).The Court's judgment of affirmance is supported by five different opinions. Significantly, none of them endorses the reasoning of the Court of Appeals, and none of them commands a majority. Of greatest importance, in the aggregate those opinions do not reject my principal submission: the Due Process Clause of the Fourteenth Amendment constrains the power of state governments to accuse a citizen of an infamous crime. Albright, 510 U.S. 266, __, 1994.SCT.40853 at ¶127 (dissent).And finally, from the footnotes to the plurality’s analysis:
As noted by the Court of Appeals below, the extent to which a claim of malicious prosecution is actionable under § 1983 is one "on which there is an embarrassing diversity of judicial opinion." 975 F.2d, at 345, citing Brummett v. Camble, 946 F.2d 1178, 1180, n. 2 (CA5 1991) (cataloging divergence of approaches by the Courts of Appeals). Most of the lower courts recognize some form of malicious prosecution action under § 1983. The disagreement among the courts concerns whether malicious prosecutions, standing alone, can violate the Constitution. Albright, 510 U.S. 266, __ n. 4, 1994.SCT.40853 at ¶132 n. 4 [emphasis supplied], and cases gathered. Footnote 4 of the plurality analysis informs the reader that the Third, Fifth, Tenth, and Eleventh Circuits recognize some form of malicious prosecution action under §1983. "Other Circuits, however, require a showing of some injury or deprivation of a constitutional magnitude in addition to the traditional elements of common-law malicious prosecution. The exact standards announced by the courts escape easy classification." Id. The latter Circuits are the First, Sixth, Seventh, and Ninth Circuits. Three of them are unaccounted for.The bottom line is that five years after Albright, the case invoked by the magistrate-judge here, the Supreme Court still described §1983 as creating a "constitutional tort." City of Monterey v. Del Monte Dunes at Monterey, 526 U.S. 687, ___, 1999.SCT.42094 at ¶163 <http://www.-versuslaw.com> (1999).
In Wilson v. Garcia [471 U.S. 261, 276-280 (1985)], we explicitly identified §1983 as a personal-injury tort, stating that "[a] violation of [§1983] is an injury to the individual rights of the person," and that "Congress unquestionably would have considered the remedies established in the Civil Rights Act [of 1871] to be more analogous to tort claims for personal injury than, for example, to claims for damages to property or breach of contract." 471 U. S., at 277. City of Monterey, 526 U.S. at ___, 1999.SCT.42094 at ¶163.Thus, it is inescapable that where Gouin’s individual rights were injured in violation of §1983, his malicious prosecution claim is, indeed, sustainable under §1983, and the magistrate-judge’s Report and Recommendation must be amended accordingly. After reading Albright, as well as the malicious prosecution cases after Albright, it is clear that the high Court did not intend to wipe out and away 100 years of §1983 malicious prosecution cases in one fell swoop. It simply wanted to be sure that the Circuits uniformly required the invocation of a constitutional deprivation in addition to the well-established elements for common-law malicious prosecution when a plaintiff set out his or her claim for malicious prosecution under §1983.
Even Judge Selya, who wrote both the Nieves and Roche decisions, conceded that there was a gap between a garden-variety malicious prosecution claim and a malicious prosecution claim sustainable under §1983, and that gap could be bridged by a plaintiff showing a deprivation of a federally-protected right. Nieves, supra; Meehan, supra; and Roche, 81 F.3d at 254.
E N D N OT E S
[1] Albright v. Oliver, 510 U.S. 266 114 S.Ct. 807, 1994.SCT.40853 <http://www.versuslaw.com> (1994) (plurality decision).[2] In no case does it appear that a “garden-variety” malicious prosecution claim is explicitly defined, but from many cases, the definition can be obtained intuitively: A “garden-variety” malicious prosecution claim” appears to be comprised of those elements for a common-law malicious prosecution claim. A “non-garden-variety” or a ”§1983-amenable” malicious prosecution claim is comprised of the common-law claim plus a deprivation of a federally-protected right. If there were not TWO kinds of malicious prosecution claims, there would be no point in using the adjectival phrase “garden-variety” in front of the words “malicious prosecution claim.”[3] Timed out by the statute of limitations, the Nieves plaintiffs’ “ripe civil right suit was left to rot.” Nieves, 241 F.3d 46, __, 2001.C01.0000068 at ¶65.[4] Alicea v. Caban, 181 F.3d 79, 1999.C01.42127 <http://www.versuslaw.com> (1st Cir. 1999).[5] Gouin was deprived of his liberty interest to be free from being falsely accused of a criminal prosecution, to be free from having to answer charges of a baseless criminal prosecution, to be free of retaliation for exercising his right to petition. [See, e.g., Compl. ¶48.] See Morrissey v. Brewer, 408 U.S. 471, 480 (1972).
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Barbara C. Johnson, Attorney at Law
6 Appletree Lane, Andover, Massachusetts 01810-4102 Phone 978-474-0833
