IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-41389
_______________
MILTON EVANS,
Plaintiff-Appellant,
VERSUS
WILLIAM S. BALL and DIANE STEADMAN,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
March 12, 1999
Before DAVIS, SMITH, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Milton Evans sued William Ball and Diane Steadman, alleging
common law malicious prosecution and constitutional violations
pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). The
district court granted summary judgment in favor of Ball and
Steadman. Finding no error, we affirm.
I.
Ball and Steadman, Special Agents with the United States
Forest Service, undertook an investigation of Evans, a Forest
Service employee, focusing on whether Evans was falsifying public
comments about Forest Service projects and activities.1 Based on
information Ball and Steadman gathered, Evans was indicted on
eight counts of knowingly making and using a false document, a
violation of 18 U.S.C. § 1001.2
Subject to a summons, Evans appeared in court to answer these
charges. He was released on his own recognizance with instructions
to report once a month to pretrial services. The indictment was
subsequently dismissed without prejudice on the government's
motion. The government claims it dismissed the indictment in
exchange for Evans's agreement to retire from the Forest Service;
Evans contends there was no such agreement.
Evans then sued Ball and Steadman, asserting a Bivens claim on
two grounds.3 First, he alleged the agents violated his Fourth
1
As part of his job, Evans would solicit citizens' comments about Forest
Service programs, write them down, and then either have the person making the
comment sign the written version or obtain that person's permission to have Evans
write the person's name on the sheet. Ball and Steadman suspected that Evans was
falsifying these comment sheets and using individuals' names without their
permission in an attempt to increase the number of favorable comments.
2
The statute provides that
[w]hoever, in any matter within the jurisdiction of any department
of the United States knowingly and willfully falsifies, conceals or
covers up by any trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements or representations,
or makes or uses any false writing or document knowing the same to
contain any false, fictitious or fraudulent statement or entry,
shall be fined not more than $10,000 or imprisoned not more than
five years, or both.
3
Under Bivens, a victim who has suffered a constitutional violation by a
(continued...)
2
Amendment right “to be free from a prosecution that is not based on
probable cause.” Ball and Steadman, Evans averred, deliberately
provided false information to, and withheld exculpatory evidence
from, federal prosecutors, violating this Fourth Amendment right.
Second, Evans argued that being summoned to appear in court to
answer these false charges, and having pre-trial restrictions
placed on him, violated his Fourth Amendment right “to be free from
unreasonable restraint and seizure that is not based on probable
cause.” Evans also asserted a supplemental state law claim for
malicious prosecution.
On the state law malicious prosecution claim, Ball and
Steadman argued that the summary judgment evidence could not
establish that the prosecution had terminated in Evans's favorSSa
prerequisite to liability for malicious prosecution. Ball and
Steadman contended that the government had dropped the claims
against Evans in exchange for a promise to retire from the Forest
Service. This “deal,” defendants argued, did not constitute
termination in Evans's favor.
The district court agreed that Evans had entered an “informal
agreement” with prosecutors under which he would retire in exchange
for dropping the charges. Because this resolution did not indicate
that Evans was not guilty of the charges, the court determined that
3
(...continued)
federal actor may recover damages in federal court. See Bivens, 403 U.S. at 395-
97; McGuire v. Turnbo, 137 F.3d 321, 323 (5th Cir. 1998).
3
his prosecution had not terminated in his favor and that he thus
could not establish malicious prosecution.
The court also granted summary judgment on Evans's Bivens
claim. Determining that Evans had not alleged a violation of a
clearly established constitutional right, the court concluded that
Evans had failed to overcome the defendants' assertion of qualified
immunity.
II.
We review a summary judgment de novo, applying the same
standard as did the district court. Melton v. Teachers Ins. &
Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir. 1997). Summary
judgment is proper when the pleadings and summary judgment evidence
present no genuine issue of material fact and indicate that the
moving party is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Disputed facts preclude summary judgment if the evidence is such
that a reasonable jury could return a verdict for the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
determining whether summary judgment was appropriate, courts must
view the inferences to be reasonably drawn from the underlying
facts in the record in the light most favorable to the nonmovant.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). We may neither weigh the evidence nor make credibility
4
determinations. Anderson, 477 U.S. at 248.
III.
Summary judgment was proper on the state law malicious
prosecution claim. Termination of the prosecution in the accused's
favor is an essential element,4 and the summary judgment evidence,
which unequivocally indicates that Evans agreed to do something in
exchange for the government's dropping the charges, does not
support a finding of favorable termination.
Evans asserts that the court erred in deciding that there was
insufficient record support for a finding that the prosecution
terminated in his favor, because there is evidence that his
retirement from the Forest Service was not part of the bargain he
struck. Evans insists that he did not agree to retire in exchange
for dropping the charges, but that he merely agreed not to advance
a defense under the Speedy Trial Act should the government seek to
reindict him.
The summary judgment evidence Evans points to is his own
affidavit and that of his attorney, Claude Welch. Evans's
affidavit states, “I was not about to resign as a part of an
agreement to drop criminal charges . . . . I agreed only to waive
4
Under Texas law, malicious prosecution includes seven elements:
(1) prosecution against the plaintiff; (2) causation by the defendant;
(3) termination of the prosecution in the plaintiff's favor; (4) the plaintiff's
innocence; (5) the absence of probable cause for the proceedings; (6) malice in
filing the charge; and (7) damage to the plaintiff. Hart v. O'Brien, 127 F.3d
424, 451 (5th Cir. 1997), cert. denied, 119 S. Ct. 868 (1999).
5
any Speedy Trial rights I had if the government reindicted me.”
Welch's affidavit reflects that there was “an understanding” that
Evans would retire, but “there was no agreement,” and that “[t]he
only agreement that Mr. Evans made was that he would not raise the
Speedy Trial Act if the cases were dismissed.” Evans contends that
because the agreement did not involve even a tacit admission of
guilt, the prosecution did, in fact, terminate in his favor.
We disagree. This court has set a high standard for what
constitutes termination in the accused's favor. In Taylor v.
Gregg, 36 F.3d 453, 455-56 (5th Cir. 1994), we held that a “pre-
trial diversion”SSan alternative to criminal prosecution that
diverts certain defendants from traditional criminal justice
processing into a program of supervisionSSis not termination in the
defendant's favor, even if all criminal charges are dismissed. In
so holding, we noted that “[t]he Second Circuit stated that
proceedings are terminated in favor of the accused only when their
final disposition indicates that the accused is not guilty.” Id.
at 456 (citing Singleton v. City of New York, 632 F.2d 185, 193
(2d Cir. 1980)). We then declared that “[w]e agree with the Second
Circuit and adopt its holding and reasoning.” Id.
The rule in this circuit, then, is that proceedings terminate
in favor of the accused only when they affirmatively indicate that
he is not guilty. While Evans advocates the position that
favorable termination results when the disposition fails to
6
indicate that the accused is guilty, the reasoning of Taylor
forecloses that position; the disposition must affirmatively
indicate a lack of guilt.
Under such a standard, Evans cannot demonstrate that the
criminal prosecution terminated in his favor. While he insists
that the agreement was not for him to retire, but simply for him to
waive his Speedy Trial Act arguments should the government reindict
him, he has admitted that he entered an agreement with prosecutors
under which they would dismiss the charges in exchange for
something. Regardless of which version of the agreement is
correct, the disposition of the case does not affirmatively
indicate that Evans was not guilty.
Moreover, the evidence compels the conclusion that the
agreement was for Evans to retire in exchange for dropping the
charges. Evans's attorney wrote the Acting Forest Supervisor that
the agreement was
[t]hat if the United States dismissed the indictment
against Milton Evans, that Milton Evans would retire from
the U.S. Forest Service no later than 90 days from the
date of his reinstatement to active duty with the Forest
Service AND if Milton Evans did not so retire that the
United States would have the option of reindicting Milton
Evans. In the event Milton Evans was reindicted by the
United States that he would not plead, as a defense to
the indictment, any defenses normally afforded a
defendant pursuant to the “Speed [sic] Trial Act.”
(Emphasis in original.) Welch then wrote, “Yes, basically it was
understood that Milton Evans would retire.” These statements are
“smoking guns” that indicate that Evans agreed to retire in
7
exchange for having charges dropped. A reasonable jury could not
find otherwise.
IV.
The district court correctly concluded that Evans's
allegations in support of his Bivens claim fail to overcome the d-
efense of qualified immunity. Summary judgment was therefore
proper.
A.
Qualified immunity protects government officials performing
discretionary functions from civil liability if their conduct
violates no clearly established statutory or constitutional right
of which a reasonable person would have known. Sorenson v. Ferrie,
134 F.3d 325, 327 (5th Cir. 1998). The Supreme Court has clarified
how courts should address a qualified immunity assertion, requiring
a two-pronged test. See Siegert v. Gilley, 500 U.S. 226, 231-32
(1991).
Once a defendant pleads qualified immunity, the district
court first must determine whether, under current law, he has
alleged a constitutional violation at all. Id. The second prong
requires courts to make two separate inquiries: whether the
allegedly violated right was “clearly established” at the time of
the incident; and, if so, whether the defendant's conduct was
8
objectively unreasonable in light of the clearly established law.
Id.; Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998).
We may not pretermit the first prong but must decide whether Evans
has alleged any constitutional violation before we may move to the
inquiries under the second prong. See, e.g., Quives v. Campbell,
934 F.2d 668, 670 (5th Cir. 1991).
B.
Evans purports to have alleged two violations of his clearly
established constitutional rights. First, he claims the
defendants' actions violated his right to be free from unreasonable
seizures. He claims that the defendants' providing misleading
information led to an unreasonable seizure that began when he
received a summons pursuant to FED. R. CRIM. P. 9 to appear and
answer to criminal charges. The summons, he avers, was accompanied
by other restrictions on his liberty. In particular, he alleges
that he was fingerprinted, photographed, forced to sign a personal
recognizance bond, and required to report regularly to pretrial
services, to obtain permission before leaving the state, and to
provide federal officers with financial and identifying
information. Taken together, Evans argues, the summons and these
liberty restrictions constituted a seizure that, because it was
based on false claims by Ball and Steadman, was unreasonable.
The district court held that an unreasonable seizure could not
9
be grounds for abrogating Ball's and Steadman's qualified immunity
because Evans “failed to allege or show a seizure within the
meaning of the Fourth Amendment, or at a minimum, that the
'seizure' alleged [violated] a clearly established Constitutional
right.” We disagree that Evans failed to allege a Fourth Amendment
seizure, but we agree that, at the time of his seizure, the law was
not clearly established that the restrictions placed on him
constituted a seizure under the Fourth Amendment. Hence, the
restrictions were not a clearly established constitutional
violation, and the allegation of seizure cannot abrogate qualified
immunity.
1.
A summons, coupled with the additional liberty restrictions
that were imposed on Evans, may constitute a seizure under the
Fourth Amendment. In Nesmith v. Taylor, 715 F.2d 194, 196 (5th
Cir. 1983), we expressly declined to decide whether a mere summons
backed by a threat of arrest could ever constitute a seizure. The
summons in the case at hand, however, was accompanied by liberty
restrictions so significant as to render Evans seized. In so
concluding, we are guided by the Second and Third Circuits, which
recently have held that accused individuals are seized when the
conditions of their pretrial release include restrictions such as
those imposed on Evans, particularly restrictions on the right to
10
interstate travel. See Gallo v. City of Philadelphia, 161 F.3d
217, 222-23 (3d Cir. 1998); Murphy v. Lynn, 118 F.3d 938, 946
(2d Cir.), cert denied, 118 S. Ct. 1051 (1998). We are also in-
formed by the intimation in Gerstein v. Pugh, 420 U.S. 103, 114
(1975), that the right to interstate travel is addressable under
the Fourth Amendment.5
We conclude, in light of these authorities, that Evans's
summons to appear in court, coupled with the requirements that he
obtain permission before leaving the state, report regularly to
pretrial services, sign a personal recognizance bond, and provide
federal officers with financial and identifying information,
diminished his liberty enough to render him seized under the Fourth
Amendment. Because he has asserted that his seizure was based on
false information provided by Ball and Steadman, he has alleged a
constitutional violationSSan unreasonable seizure, so the first
prong of Siegert is satisfied.
2.
5
In holding that “the Fourth Amendment requires a judicial determination
of probable cause as a prerequisite to extended restraint of liberty following
arrest,” Gerstein, 420 U.S. at 114, the Court stated, “Even pretrial release may
be accompanied by burdensome conditions that effect a significant restraint on
liberty. See, e.g., 18 U.S.C. §§ 3146(a)(2) . . . .” Id. The code provision
the Court cited permits pretrial release with “restrictions on the travel
. . . of the person during the period of release.” 18 U.S.C. § 3146(a)(2)
(1970), revised and recodified at 18 U.S.C. § 3142(c)(1)(B)(iv) (1994)
(permitting “restrictions on . . . travel”). Hence, the Gerstein Court indicated
that the liberties protected by the Fourth Amendment are not limited to physical
detentions and include the accused's freedom to travel while on pretrial release.
11
Under the second prong of Siegert, we must decide whether it
was clearly established, when Evans was seized, that the summons
and liberty restrictions to which he was subject constituted a
seizure. We conclude that the law at the time of Evans's seizure
was not clearly established to that effect.
This circuit has never considered the question whether a
summons plus additional liberty restrictions can constitute a
seizure, and we have expressly declined to answer the question
whether a summons, standing alone, is a seizure. See Nesmith,
715 F.2d at 196. Although one Justice has opined on the subject,6
the Supreme Court has left open the question whether a voluntary
response to an arrest warrant, coupled with pre-trial travel
restrictions, is a seizure. See Albright v. Oliver, 510 U.S. 266,
275 (1994).
Moreover, other courts7 have found that a summons does not
implicate the prohibition of the Fourth Amendment against
unreasonable seizures,8 and Murphy and GalloSSthe cases from other
circuits holding that a summons accompanied by interstate travel
6
See Albright v. Oliver, 510 U.S. 266, 279 (1994) (Ginsburg, J.,
concurring) (suggesting that a defendant released prior to trial on the condition
that he later appear before the court is still seized within the meaning of the
Fourth Amendment).
7
We do not address whether the decisions of other circuits have a bearing
on whether the law is “clearly established” in this circuit.
8
See Prather v. City of Louisville, 85 F.3d 629 (6th Cir. 1996)
(unpublished) (table), 1996 U.S. App. LEXIS 14471 (6th Cir. May 10, 1996)
(No. 94-5634) (unpublished); De Hardit v. United States, 224 F.2d 673 (4th Cir.
1955); Ducas v. Martin, 941 F. Supp. 1281, 1293 (D. Mass. 1996).
12
restrictions may constitute a seizureSShad not been decided when
Evans's liberty was limited by the summons and restrictions.
Finally, in hinting that some types of interstate travel
restrictions could implicate Fourth Amendment libertiesSSa
suggestion that lends support to our conclusion that Evans was
seizedSSthe Gerstein Court did not hold that simply requiring an
accused to obtain permission to leave the state constituted a
seizure, so that Court did not clearly establish that the
restrictions placed on Evans amounted to his being seized. Taken
together, these observations indicate that, at the time Evans's
liberty was restricted, it was not clearly established that the
restrictions constituted a seizure under the Fourth Amendment.
C.
Evans's other purported allegation of a clearly established
constitutional violationSShis claim that Ball and Steadman violated
his “right to be free from a prosecution not based on probable
cause”SSalso fails to abrogate qualified immunity. A plaintiff
attempting to state a claim under 42 U.S.C. § 1983 for prosecution
unsupported by probable cause must establish, as with a common law
malicious prosecution claim, that the prosecution terminated in his
favor. See Brummett v. Camble, 946 F.2d 1178, 1183 (5th Cir.
13
1991).9 Because a Bivens action parallels a § 1983 action,10 we
9
We construe Evans's claim of a “prosecution unsupported by probable
cause” as a claim of malicious prosecution, because a prosecution that is
unsupported by probable cause but does not rise to the level of malicious
prosecution is not a clearly established constitutional violation. As a pure
matter of logic, there is a difference between the right to be free from
malicious prosecution and the right to be free from a prosecution unsupported by
probable cause. Malicious prosecution includes seven elements: (1) prosecution;
(2) causation by the defendant; (3) termination of the prosecution in the
plaintiff's favor; (4) the plaintiff's innocence; (5) the absence of probable
cause for the proceedings; (6) malice in filing the charge; and (7) damage to the
plaintiff. Hart, 127 F.3d at 451. Prosecution in the absence of probable cause
requires only elements one, two, and five. Of course, if there is no probable
cause, then elements three, four, six, and seven likely will be present as well.
But it is possible to conceive of a “prosecution unsupported by probable cause”
that would not constitute a “malicious prosecution.”
There is, however, no clearly established constitutional right to be free
from a prosecution that is unsupported by probable cause but that does not rise
to the level of malicious prosecution. First of all, the text of the Fourth
Amendment does not refer to any right to be free from prosecutions not supported
by probable cause. It states that “no Warrants shall issue, but upon probable
cause,” but there is a difference between a warrant unsupported by probable cause
and a prosecution in the absence of probable cause. Indeed, there was no warrant
(or arrest) in this case; Evans was summoned to court. Hence, the text of the
Fourth Amendment does not support the proposition that a prosecution not based
on probable cause is a constitutional violation.
That proposition also lacks support in our caselaw. We have held that
malicious prosecution may be a constitutional violation, but only if all of its
common law elements are established, including termination in favor of the
accused. See Brummett, 946 F.2d at 1183. In Wheeler v. Cosden Oil & Chem. Co.,
734 F.2d 254 (5th Cir. 1984), we did state that “there is a federal right to be
free from bad faith prosecutions,” id. at 258 (quoting Shaw v. Garrison, 467 F.2d
113, 120 (5th Cir. 1973)), and we defined bad faith as “without probable cause.”
Id. A close reading of that case, however, indicates that we meant only to be
recognizing a federal right to be free from malicious prosecution.
The issue before the Wheeler court was whether malicious prosecution could
form the grounds for a § 1983 action, and while the language quoted above
suggests that a prosecution unsupported by probable cause (but not involving all
the elements of malicious prosecution) would violate the Constitution, we did not
so hold. In fact, we noted that other circuits agreeing with us that there is
a § 1983 action based on malicious prosecution “have implicitly recognized such
a cause of action in decisions holding that termination of the allegedly wrongful
state proceedings in favor of the federal plaintiff is as essential to such a
claim under § 1983 as it would be at common law.” Id. at 260 n.14. Wheeler,
then, should not be read as recognizing a constitutional right to be free from
prosecutions that are unsupported by probable cause but that do not rise to the
level of malicious prosecution. In addition, in Brummett we questioned whether
Wheeler's reasoning on “the implied constitutional right to have charges brought
only upon probable cause . . . would survive the Supreme Court's recent attempts
to predicate constitutional rights on a more textual footing.” Brummett,
(continued...)
14
reason that a plaintiff attempting to base a Bivens claim on a
prosecution unsupported by probable cause must establish all the
elements of malicious prosecution, including termination of the
prosecution in his favor.11
V.
Evans thus does not allege a clearly established
constitutional violation, because the prosecution did not terminate
in his favor. Because he has alleged no violation of a clearly
established constitutional right, he is unable to overcome the
defense of qualified immunity, and the district court correctly
9
(...continued)
946 F.2d at 1181 (citing Wilson v. Seiter, 501 U.S. 298 (1991)).
Finally, the Supreme Court has noted that “the most expansive approach” any
circuit has taken in finding a constitutional violation in a prosecution
unsupported by probable cause still maintains that the elements of the
constitutional cause of action “are the same as the common-law tort of malicious
prosecution.” Albright, 510 U.S. at 271 n.4. Taken together, these observations
demonstrate that Evans did not have a clearly established constitutional right
“to be free from a prosecution that is not based upon probable cause.” He has
a right to be free from malicious prosecution, but to demonstrate a violation of
that right, he would have to demonstrate all the elements of malicious
prosecution, including termination in his favor.
10
A Bivens action is analogous to an action under § 1983SSthe only
difference being that § 1983 applies to constitutional violations by state,
rather than federal, officials. See Abate v. Southern Pac. Transp. Co., 993 F.2d
107, 110 n.14 (5th Cir. 1993) (“Bivens is the federal counterpart of § 1983 [and]
. . . extends the protections afforded by § 1983 to parties injured by federal
actors not liable under § 1983.”). See also Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982) (“[I]t would be 'untenable to draw a distinction for purposes of
immunity law between suits brought against state officials under § 1983 and suits
brought directly under the Constitution against federal officials.'”) (quoting
Butz v. Economou, 438 U.S. 478, 504 (1978)).
11
See Uboh v. Reno, 141 F.3d 1000, 1004 (11th Cir. 1998) (holding that
favorable termination is necessary element of Bivens action, as well as § 1983
action, that is premised on prosecution unsupported by probable cause).
15
granted summary judgment.
AFFIRMED.
16