FILED
United States Court of Appeals
Tenth Circuit
July 27, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
WILLIAM MILLER,
Plaintiff-Appellant, No. 07-2134
v. (D. of N.M.)
PAUL SPIERS, MICHAEL FOX, and (D.C. No. CIV-05-577-BB/LAM)
DONNA ARBOGAST,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, O’BRIEN, and TYMKOVICH, Circuit Judges.
In the course of investigating a murder in Albuquerque, New Mexico,
police investigators suspected William Miller. Miller was arrested and spent
seven weeks in custody, he claims on the basis of false evidence fabricated by the
investigators. Immediately after the arrest, he was caught attempting to eat a
couple of business cards he had hidden in his sock. These business cards,
apparently containing names of Miller’s associates, became evidence in the
murder investigation, and although murder charges were eventually dropped
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
against him, Miller pleaded no contest to attempted tampering with evidence and
received a suspended sentence.
He subsequently brought a lawsuit under 42 U.S.C. § 1983 against various
individuals involved in the investigation, alleging the Defendants engaged in a
continuing conspiracy to violate his Fourth and Fourteenth Amendment rights.
The district court—treating Miller’s allegations not as a single claim but as
several separate Fourth and Fourteenth Amendment violations—granted summary
judgment to Defendants on statute of limitations and qualified immunity grounds.
Miller appealed.
Because the district court erred in failing to analyze Miller’s allegations as
a single § 1983 claim—one resembling the common law tort of malicious
prosecution—summary judgment in favor of the Defendants was premature.
Accordingly, we VACATE the district court’s grant of summary judgment to
Defendants and REMAND for further proceedings.
I. Background
In three opinions issued concurrently, the district court resolved various
summary judgment motions filed by Defendants. The following background
presents relevant undisputed facts, as stated in the district court’s opinions.
A Murder in Albuquerque
This case arises from the September 1999 murder of Girly Hossencofft in
Albuquerque, New Mexico. Albuquerque Police Department detective Michael
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Fox and forensic scientist Donna Arbogast, together with assistant district
attorney Paul Spiers, investigated Mrs. Hossencofft’s murder. Although Mrs.
Hossencofft’s body was never found, her husband, Diazien Hossencofft, and his
girlfriend, Linda Henning, were eventually convicted of Mrs. Hossencofft’s
murder, kidnaping, and several other crimes. Early in the investigation, however,
police investigators also targeted Mr. Hossencofft’s acquaintance, William Miller,
as a possible participant in Mrs. Hossencofft’s murder. Miller alleges the police
conspired to fabricate evidence against him for the murder.
In the course of their investigation, the police collected deer, rabbit, and cat
hair, as well as feathers, from the living room carpet in Mrs. Hossencofft’s
apartment. They also discovered at a nearby highway a bloody blouse, thought to
be Mrs. Hossencofft’s, wrapped in a tarp. Rabbit and cat hair along with feathers
were also collected from the tarp and blouse. A steam cleaner the police thought
was used to clean the carpet in Mrs. Hossencofft’s apartment likewise contained
deer hair. Deer, rabbit, and cat hair, as well as feathers, are all used for tying
flies for fly fishing.
Armed with this evidence, and having learned from the investigation that
Miller was a fly fisherman, Detective Fox applied for a search warrant on Miller’s
residence in December 2000, seeking “any and all materials used in fishing,
hunting, gaming, or tying flies for fishing to include but not be limited to deer
hair,” as well as “any and all trace evidence.” Aplt. App. at 1180 (brackets
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omitted). In executing the search warrant, the police collected feathers as well as
deer, rabbit, and cat hair. They turned the evidence over to Arbogast’s forensics
department for testing.
Miller’s Arrest
On February 12, 2001, Fox prepared an affidavit for Miller’s arrest warrant.
In the affidavit, he linked the trace evidence collected during the December 2000
search to Mrs. Hossencofft’s murder. The police arrested Miller the same day.
Immediately after his arrest and while in police custody, Miller hid a
couple of business cards in his sock. He then attempted to eat two of these cards
and in the process tore one card into several pieces. The police saw Miller try to
eat the cards and made him spit them out. We cannot tell from the record whose
names or businesses appeared on the cards, but the police believed the cards
contained the names of Miller’s associates who could help in the criminal
investigation. The police thus believed Miller tried to hide and destroy evidence
in an attempt to hinder their prosecution.
Charges Against Miller
After his arrest on February 12, Miller spent seven weeks in jail. Between
February 21 and 23, the State of New Mexico presented its case against Miller to
a grand jury. Fox and Arbogast both testified, allegedly supplying false
information and omitting critical details about the evidence linking Miller with
Mrs. Hossencofft’s murder. For example, Miller alleges Arbogast failed to
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explain to the grand jury that DNA testing of the human hair collected from the
tarp specifically excluded Miller but did not exclude Mr. Hossencofft’s girlfriend
Henning. And Fox allegedly falsely testified he found Henning’s burnt business
card inside Miller’s fireplace.
The grand jury indicted Miller for conspiracy to commit murder, kidnaping,
and conspiracy to commit kidnaping. In addition, the grand jury indicted Miller
on several charges of tampering with evidence, including three counts stemming
from Miller’s attempt to eat the business cards.
More than a year later, on May 21 to 23 of 2002, the prosecution, likely
prompted by Miller’s attorney challenging the alleged falsehoods made during the
February 2001 grand jury proceedings, presented its case against Miller to another
grand jury. Fox and Arbogast again testified, though Miller alleges this time only
Fox provided false information. On May 24, that grand jury indicted Miller for
the same counts of tampering with evidence as did the February 2001 grand jury,
but not for kidnaping, conspiracy, or murder.
In May 2002, then, Miller faced two outstanding indictments—one from the
February 2001 and one from the May 2002 grand jury proceedings. On May 24,
assistant district attorney Spiers filed a nolle prosequi 1 and dismissed the
1
A nolle prosequi represents a “legal notice that a . . . prosecution has
been abandoned.” Black’s Law Dictionary 1074 (8th ed. 2004).
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conspiracy, murder, and kidnaping charges against Miller. The tampering counts,
however, remained.
Still attempting to locate enough evidence to convict Miller of Mrs.
Hossencofft’s murder, on February 12, 2003 Fox prepared an affidavit in support
of a search warrant for Miller’s house. Fox sought the warrant to search the
house for “any and all tapes containing conversations between Plaintiff and his
psychic, Cynthia Hess.” Aplt. App. at 1197 (brackets omitted). Defendant Spiers
approved the affidavit over the phone. The affidavit contained allegedly false
information although Miller does not contend Arbogast provided the false
information or withheld any exculpatory evidence.
Miller Pleads to Attempted Tampering with Evidence
On July 16, 2003, Miller pleaded no contest to three counts of attempted
tampering with evidence—the counts related to his attempt to eat the business
cards on February 12, 2001. In consideration for his plea, the state dropped the
two other tampering counts. On October 8, Miller received a suspended sentence
of 364 days for attempted tampering with evidence.
II. Analysis
We review the district court’s grant of summary judgment de novo using
the same standard applied by the district court. Croy v. Cobe Labs., Inc., 345
F.3d 1199, 1201 (10th Cir. 2003). Summary judgment is appropriate only when
“there is no genuine issue as to any material fact and . . . the moving party is
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entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Bones
v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). Concluding no
genuine issue of material fact existed, the district court resolved summary
judgment as a matter of law, ruling in favor of Defendants on statute of
limitations and qualified immunity grounds.
A. District Court’s Characterization of Miller’s Suit
In analyzing Defendants’ summary judgment motions, the district court
interpreted Miller’s complaint as stating five separate causes of action: (1) a
Fourth Amendment violation related to the December 2000 search warrant; (2) a
Fourth Amendment violation related to Miller’s arrest on February 12, 2001; (3) a
Fourteenth Amendment violation regarding the February 2001 grand jury
proceedings; (4) a Fourteenth Amendment violation regarding the May 2002
grand jury proceedings; and (5) a Fourth Amendment violation related to the
February 2003 search warrant. The district court concluded the first three claims
were barred by New Mexico’s three-year statute of limitations for personal injury
suits. And on the remaining two claims, the court concluded Miller failed to
overcome Defendants’ qualified immunity defense. Notably, the court determined
that Miller’s complaint failed to assert a cause of action for malicious
prosecution, and even if it had, the claim would be precluded because Miller
could not demonstrate a favorable termination on the tampering charges. On this
latter conclusion, we disagree.
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Miller argues the district court erred in failing to recognize that his
complaint, rather than alleging five separate claims, stated but one single claim
under a malicious prosecution theory. He analogizes his case to our decision in
Robinson v. Maruffi, 895 F.2d 649, 654 (10th Cir. 1990), where a § 1983 plaintiff
alleged a “conspiracy . . . to cause his malicious prosecution.” Miller’s allegation
accuses Defendants of conspiring to fabricate probable cause to implicate him in
Mrs. Hossencofft’s kidnaping and murder, which resulted in his seven-week long
confinement. 2
Because Miller’s confinement was preceded by an arrest pursuant to a
warrant, an analogous cause of action is indeed malicious prosecution, grounded
in the Fourth Amendment guarantee to be free from unreasonable seizures. See
Wilkins v. DeReyes, 528 F.3d 790, 797–99 (10th Cir. 2008), cert. denied, 129 S.
Ct. 1526 (2009). In disputing the existence of probable cause to support his arrest
warrant, Miller challenges the institution of legal process against him. He also
challenges the 2001 and 2002 indictments, obtained after allegedly false
testimony by the Defendants at the respective grand jury proceedings, thereby
2
In particular, in response to questioning from the panel at oral argument,
Miller disclaimed the notion that his suit was pursuing a number of separate
claims. Rather, Miller argued the complaint alleged a single claim the Defendants
engaged in a “conspiracy to violate [his] constitutional rights. . . . [His] Due
Process [rights] and several ones under the Fourth Amendment.” Oral Arg. at
5:49–6:06. Miller maintains that, in essence, his single § 1983 claim aggregated
all the instances of alleged constitutional violations by the Defendants and the
closest tort analog for his suit was a malicious prosecution claim. Id. at
6:34–6:58.
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implicating his Fourteenth Amendment due process rights. Thus as Miller
apparently contends, we see this case as a single Fourth and Fourteenth
Amendment malicious prosecution claim. See Novitsky v. City of Aurora, 491
F.3d 1244, 1258 (10th Cir. 2007) (noting that a malicious prosecution claim can
be grounded in both the Fourth and Fourteenth Amendments); Pierce v. Gilchrist,
359 F.3d 1279, 1285–86 (10th Cir. 2004) (“The initial seizure is governed by the
Fourth Amendment, but at some point after arrest, and certainly by the time of
trial, constitutional analysis shifts to the Due Process Clause.”).
Miller’s allegations that the February 2001 arrest warrant and the
subsequent prosecution for murder, conspiracy, and kidnaping were not supported
by probable cause are sufficient, at least at this stage, to maintain his malicious
prosecution claim. Miller has not been consistent in explaining the legal grounds
for his claim, and as a result, the district court’s analysis is understandable.
Nevertheless, the district court reached an erroneous conclusion regarding the
character of Miller’s malicious prosecution claim and therefore summary
judgment was inappropriate.
B. Malicious Prosecution Theory as a Basis for Miller’s § 1983 Claim
With this background in mind, we turn to Miller’s claim properly
characterized as a malicious prosecution conspiracy by the Defendants. Under
our cases, a § 1983 malicious prosecution claim requires proof of the following
elements: (1) the defendant caused the plaintiff’s continued confinement or
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prosecution; (2) the original action terminated in favor of the plaintiff; (3) no
probable cause supported the original arrest, continued confinement, or
prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained
damages. Novitsky, 491 F.3d at 1258; see also Wilkins, 528 F.3d at 799. At this
point, the primary issue appears to be whether Miller satisfied the favorable
termination element.
The district court concluded that although Miller did not allege a malicious
prosecution by the Defendants, if he had, such a claim would be barred by a lack
of a favorable termination on the attempted tampering charges. Miller, as a
foundation of his malicious prosecution claim, challenges as unlawful his
February 12, 2001 arrest, after which he spent seven weeks in custody. It is
unclear, however, whether Miller’s complaint contends the attempted tampering
charges were unlawfully initiated or prosecuted. Nor does Miller make clear
whether the attempted tampering charges were part of the Defendants’ conspiracy
to maliciously prosecute him.
For purposes of this appeal, we assume Miller claims the Defendants only
conspired to prosecute him for the murder and kidnaping offenses without
probable cause. Allowing Miller to attack only these charges in his malicious
prosecution claim is entirely consistent with the common law of malicious
prosecution, which allows a plaintiff to challenge prosecutions on a charge-by-
charge basis. E.g., Kossler v. Crisanti, 564 F.3d 181, 188 (3d Cir. 2009) (“[T]he
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favorable termination of some but not all individual charges does not necessarily
establish the favorable termination of the criminal proceeding as a whole.”);
Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007)
(“[P]robable cause to believe an individual committed one crime—and even his
conviction of that crime—does not foreclose a malicious prosecution claim for
additionally prosecuting the individual on a separate charge.”). Viewed in this
light, Miller’s convictions for attempted tampering with evidence do not
necessarily foreclose his malicious prosecution claim concerning the charges that
were ultimately dismissed—that claim challenges the murder and kidnaping
prosecutions and may remain viable even though Miller admitted to attempting to
tamper with evidence. 3
But even so, if the alleged conspiracy by the Defendants included the
fabrication of an evidence tampering claim, it is inconsistent for Miller to plead
no contest to attempted tampering with evidence—evidence that may have been
relevant to the allegedly fabricated charges of murder and kidnaping. His legal
3
For this reason, with respect to Miller’s claim regarding the murder,
conspiracy, and kidnaping charges, we cannot conclude—at this stage—that there
was no favorable termination. In particular, after the May 2002 grand jury
indicted Miller on several counts of tampering with evidence, the prosecutor
dismissed an earlier indictment containing the same counts in addition to the
murder, conspiracy, and kidnaping charges. “To decide whether a nolle prosequi
constitutes a favorable termination, we look to the stated reasons for the dismissal
as well as to the circumstances surrounding it in an attempt to determine whether
the dismissal indicates the accused’s innocence.” Wilkins, 528 F.3d at 803. A
bare dismissal, without more, is not indicative of innocence and the plaintiff has
the burden of proving a favorable termination. Id.
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theories are premised on an alleged conspiracy to maliciously prosecute—but his
plea repudiates that concept by accepting charges brought pursuant to that
conspiracy. 4 In other words, since Miller ultimately entered no contest pleas to
some of the charges in the indictments, how can there be a malicious prosecution
claim sounding in a single conspiracy? Why would Miller destroy evidence if he
had committed no crime?
The record before us does not permit a definitive conclusion about why the
murder and kidnaping charges were dismissed and how the dismissal is related to
the tampering charges. Further, the parties did not have the opportunity to
address this particular element in their arguments at the district court. It could be
Miller’s attempted tampering with evidence contributed to the dismissal. In such
a case, Miller’s claim may be precluded. Wilkins, 528 F.3d at 803–04 (noting that
misconduct by a § 1983 claimant may turn a nolle prosequi into an unfavorable
termination). Similarly, if Miller’s claim alleges the Defendants’ conspiracy
included wrongfully instituting and pursuing the tampering charges, it is possible
that Heck v. Humprey, 512 U.S. 477 (1994), may operate to bar Miller’s claim
since the lawsuit would then impugn the validity of his conviction on those
charges.
4
New Mexico defines “conviction” to include pleas of no contest. See
Howard v. Dickerson, 34 F.3d 978, 981 n.2 (10th Cir. 1994) (citing N.M. Stat.
§ 30-1-11).
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Alternatively, the prosecution’s case against Miller may not have been
supported by probable cause. Wilkins, 528 F.3d at 804 (stating that in such a
circumstance a dismissal may be indicative of innocence and thereby constitute a
favorable termination). Because neither the parties’ arguments nor the record
presents a definitive answer to this question, we must remand this issue for
further consideration by the district court. See Evers v. Regents of Univ. of Colo.,
509 F.3d 1304, 1309–10 (10th Cir. 2007) (stating that “[i]t would be unfair to
affirm a summary judgment against a plaintiff for lack of evidence of an element
of the cause of action unless the defendant has clearly challenged that lack of
evidence in district court” and therefore refusing to affirm the grant of summary
judgment on that new ground).
In sum, the district court must, in the first instance, determine the particular
confines of Miller’s malicious prosecution claim. Specifically, the court should
address which charges Miller contends were either without probable cause or
were improperly prosecuted, and what specific conduct by the Defendants is
included within this singular claim. Further, the court should inquire into (1)
whether Miller’s attempted tampering by destroying the business cards bore upon
the prosecutor’s ultimate decision to dismiss the murder, conspiracy, and
kidnaping charges, or (2) whether the tampering charges are integral to the
alleged conspiracy by the Defendants such that his § 1983 claim would impugn
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the validity of his tampering convictions. If Miller’s conduct did in fact result in
the nolle prosequi, then Miller’s claim may very well be precluded.
C. Statute of Limitations
Finally, we must note that in granting summary judgment to the
Defendants, the district court concluded that three of Miller’s claims were barred
by the statute of limitations: (1) the Fourth Amendment claim arising from the
December 2000 search warrant; (2) the Fourth Amendment claim arising from the
February 12, 2001 arrest; and (3) the Fourteenth Amendment claim arising from
the February 2001 grand jury proceedings. While these conclusions may have
been correct with respect to these claims as separate violations, because we
construe Miller’s § 1983 complaint to state a single claim for malicious
prosecution, the accrual analysis is different.
A malicious prosecution claim accrues, at the earliest, when favorable
termination occurs. Mondragon v. Thompson, 519 F.3d 1078, 1083 (10th Cir.
2008). Here, the allegedly favorable termination occurred when the prosecutor
filed the nolle prosequi as to the conspiracy and kidnaping charges on May 24,
2002. Miller filed this action on May 24, 2005—within the applicable three-year
statute of limitations for civil rights actions under the applicable New Mexico
statute. See N.M. Stat. Ann. § 37-1-8 (1978); N.M.R.A. 1-006-A; Mondragon,
519 F.3d at 1082. Thus, Miller’s malicious prosecution action is timely.
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III. Conclusion
For the foregoing reasons, we VACATE the district court’s grant of
summary judgment and REMAND to the district court for further proceedings.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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