[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15400 ELEVENTH CIRCUIT
OCTOBER 22, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 06-22883-CV-JAL
EUGENE HUNTER, JR.,
Plaintiff-Appellant,
versus
ROBERT E. MILLER,
MIAMI DADE SHERIFF'S OFFICE,
d.b.a. Metro Dade Police Department,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 22, 2010)
Before TJOFLAT, HULL and FAY, Circuit Judges.
PER CURIAM:
Appellant, a prisoner proceeding pro se, appeals the district court’s dismissal
of his complaint brought under 42 U.S.C. § 1983 to vindicate his rights under the
Fourth and Fourteenth Amendments.1 The court dismissed the complaint because,
although appellant alleged that appellee’s challenged conduct occurred before he
was arrested or legal process commenced, it constituted a tort action for malicious
prosecution.
When, as here, a plaintiff alleges that his seizure occurred as part of the
institution of a criminal prosecution, the Fourth Amendment violation is analogous
to the tort of malicious prosecution. Whiting v. Traylor, 85 F.3d 581, 586 (11th
Cir. 1996). Id. at 586. In that appellant was convicted, he cannot establish an
essential element of the tort—that his prosecution terminated in his favor.2 His
1
As a preliminary matter, we decline to reconsider our previous determination that
Hunter’s appeal is timely because the district court did not enter its final judgment in a separate
document. See Fed. R. App. P. 4(a)(7)(A)(ii).
2
Under Florida law, to establish the tort of malicious prosecution, a plaintiff must
establish each of six elements:
(1) an original judicial proceeding against the present plaintiff was commenced or
continued; (2) the present defendant was the legal cause of the original
proceeding; (3) the termination of the original proceeding constituted a bona fide
termination of that proceeding in favor of the present plaintiff; (4) there was an
absence of probable cause for the original proceeding; (5) there was malice on the
part of the present defendant; and (6) the plaintiff suffered damages as a result of
the original proceeding.
Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004).
2
complaint was therefore due to be dismissed.3
Affirmed.
3
In light of this conclusion, we need not consider whether appellant’s claim was barred
by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
3