Nieves v. McSweeney

United States Court of Appeals
For the First Circuit

No. 00-1110

ANGEL NIEVES AND REBECCA NIEVES,
Plaintiffs, Appellants,

v.

TERENCE J. MCSWEENEY ET AL.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

James B. Krasnoo, with whom Paul J. Klehm was on brief, for
appellants.
Brian Rogal, with whom Law Offices of Timothy M. Burke was
on brief, for appellee McSweeney.
Douglas I. Louison, Stephen C. Pfaff, and Merrick, Louison
& Costello on brief for appellee Beauvais.
Leonard H. Kesten, Jocelyn M. Sedney, Deidre Brennan Regan,
and Brody, Hardoon, Perkins & Kesten on brief for remaining
appellees.

February 27, 2001
 SELYA, Circuit Judge. The appellants, Angel Nieves and

his eighteen-year-old daughter Rebecca, claim to be victims of

police brutality. They waited a considerable period of time

before bringing suit, however, and the district court turned

them away, partially on timeliness grounds and partially for

failure to proffer a federally-cognizable claim. Their appeal

contends that the lower court misunderstood both the operation

of the statute of limitations in civil conspiracy cases and the

circumstances under which 42 U.S.C. § 1983 provides a vehicle

for the maintenance of malicious prosecution claims. Finding

these contentions unpersuasive, we affirm the district court's

entry of summary judgment.

I. BACKGROUND

On the evening of May 12, 1994, a disturbance erupted

at the appellants' home in Ayer, Massachusetts. The police

learned of the tumult from Rebecca's mother (Angel's ex-wife),

who telephoned to report that Angel was abusing Rebecca.

Officers Terence McSweeney and Dana Beauvais responded to the

call. Although the details of what transpired are murky, at

least two things are clear: (1) a melee developed involving the

appellants and the police officers; and (2) both appellants

sustained injuries.

-3-
 As the fracas ended, two more police officers, Bradley

Madge and Leon Avery, arrived at the scene. The appellants were

arrested without a warrant and taken to the police station. The

authorities detained them for approximately two hours, at which

point Angel was released on a $25 bond and Rebecca was released

on her own recognizance.

The next day, Officer Edward Denmark, acting on reports

filed by McSweeney and Beauvais, swore out criminal complaints

against the appellants. One such complaint charged Angel with

assault with intent to murder, assault and battery by dangerous

weapon, assault and battery on a police officer (two counts),

and being a disorderly person. The second charged Rebecca with

two counts of assault and battery on a police officer and one

count of being a disorderly person. The appellants were

promptly arraigned and then released on their own recognizance.

Pretrial proceedings were unremarkable (although the

appellants, from time to time, had to attend court sessions).

Eventually, the charge of assault with intent to murder was

withdrawn. The remaining charges were tried to a jury. On

October 27, 1994, the jurors found Angel guilty on the

disorderly person charge but acquitted the appellants on all

other charges.

-4-
 Nearly three years later, on October 9, 1997, the

appellants brought suit in the United States District Court for

the District of Massachusetts against McSweeney, Beauvais,

Madge, Avery, Denmark, the chief of police, and the town of Ayer

(the Town). The gravamen of their complaint was the

multifaceted allegation that the officers conspired to deprive

the appellants of their civil rights by using excessive force,

arresting them without probable cause, initiating baseless

charges, and maliciously prosecuting those charges. After an

extensive period of pretrial discovery, the defendants sought

summary judgment. In passing upon these motions, the district

court proceeded in increments. First, it segregated all the

federal-law claims that were based on the events of May 12, 1994

(such as those rooted in excessive force and false arrest) and

ruled that they were time-barred. Nieves v. McSweeney, 73 F.

Supp. 2d 98, 102 (D. Mass. 1999). Next, the court focused upon

the lone federal claim that escaped this proscription:

conspiracy to commit malicious prosecution. That claim, the

court ascertained, did not allege a violation of a federally-

protected right. Id. at 104. Accordingly, the court granted

the defendants' motions for brevis disposition, without

prejudice, however, to the appellants' pursuit of any state-law

claims in a state tribunal. Id. at 106. This appeal followed.

-5-
II. ANALYSIS

The appellants advance two principal theses in their

endeavor to blunt the swing of the summary judgment ax. First,

they posit that the entire panoply of events that began on the

evening of the arrest and ended with the completion of their

criminal trial constituted a single, ongoing conspiracy.

Building on this foundation, they argue that the statute of

limitations did not begin to run until the commission of the

last overt act incident to that conspiracy — the officers'

allegedly false testimony at the criminal trial. Since that act

took place within the three-year limitation period, the

appellants assert that their claims are timely. As a fallback,

the appellants argue that even if some of their claims are time-

barred, their malicious prosecution claim is not. This claim,

they suggest, comprises a viable constitutional cause of action

grounded in the Fourth Amendment.

In the sections that follow, we parse the complaint and

then measure each of these theories against a familiar standard

of review. After all, summary judgment is appropriate only when

"the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

-6-
Fed. R. Civ. P. 56(c). In applying this screen, we construe the

record and all reasonable inferences from it in favor of the

party who lost below. Grant's Dairy-Me., LLC v. Comm'r of Me.

Dep't of Agric., Food & Rural Res., 232 F.3d 8, 14 (1st Cir.

2000); Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d

178, 184 (1st Cir. 1999). In the process, we afford no special

deference to the lower court's views. See Houlton Citizens'

Coalition, 175 F.3d at 184 (explaining that the court of appeals

reviews the entry of summary judgment de novo).

A. The Complaint.

We grapple with only two of the ten counts in the

complaint: counts 1 and 2. These counts are both premised on

42 U.S.C. § 1983. They charge Officers McSweeney, Beauvais, and

Madge with participating in a conspiracy to violate the

appellants' civil rights.1 We briefly explain why the remaining

counts need not concern us.

Three counts — counts 3, 4, and 5 — allege supervisory

liability against the police chief and municipal liability on

1We mention only McSweeney, Beauvais, and Madge because, in
other rulings, the district court dismissed the action as it
pertained to Avery and Denmark. These unappealed rulings rested
on different premises and we do not discuss them further.

-7-
the part of the Town. The district court initially severed and

stayed the prosecution of these counts, and eventually granted

summary judgment on them (along with counts 1 and 2). These

counts require proof, inter alia, of an underlying

constitutional violation. See Evans v. Avery, 100 F.3d 1033,

1040 (1st Cir. 1996) (applying this principle in respect to

municipal liability); Martinez v. Colon, 54 F.3d 980, 990 (1st

Cir. 1995) (applying this principle in respect to supervisory

liability). The constitutional violations upon which these

counts are premised are those alleged in counts 1 and 2. Thus,

if the district court appropriately jettisoned the first two

counts of the complaint, the next three also must fail.

By like token, counts 6, 7, and 8 charge violations of

42 U.S.C. § 1985, which in pertinent part confers a private

right of action for injuries occasioned when "two or more

persons . . . conspire . . . for the purpose of depriving,

either directly or indirectly, any person or class of persons of

the equal protection of the laws, or of equal privileges and

immunities under the laws." 42 U.S.C. § 1985(3). As the

district court noted, the appellants' section 1985(3) claims

mirror their section 1983 claims. Nieves, 73 F. Supp. 2d at 102

n.4. Inasmuch as the critical issues in this appeal — whether

the appellants sued in a timeous fashion and whether they were

-8-
deprived of a federally-protected right — are common to both

sets of claims, it would serve no useful purpose to discuss the

section 1985(3) claims separately. Those counts can stand only

if, and to the same extent that, counts 1 and 2 can stand.

This brings us to counts 9 and 11 (oddly, the

appellants' complaint contains no count 10). These counts

allege a common-law conspiracy to violate Massachusetts civil

rights laws. When the court below entered its summary judgment

order, it declined to exercise supplemental jurisdiction over

these counts. Id. at 106. The appellants have not attacked the

lower court's determination that these counts should be aired in

a state forum. Consequently, we need not discuss them in any

detail.

B. Conspiracy.

The appellants allege the existence of a single ongoing

conspiracy that extended over a period of more than four months

(May 12 through October 27, 1994) and encompassed the officers'

excessive use of force, the false arrest, and the ensuing

malicious prosecution. Because of the appellants' delay in

bringing suit, we must determine when the limitation period

began to run on this civil rights conspiracy claim.

Section 1983 does not contain a built-in statute of

limitations. McIntosh v. Antonino, 71 F.3d 29, 33 (1st Cir.

-9-
1995). Thus, a federal court called upon to adjudicate a

section 1983 claim ordinarily must borrow the forum state's

limitation period governing personal injury causes of action.

Wilson v. Garcia, 471 U.S. 261, 276-80 (1985). Massachusetts

prescribes a three-year statute of limitations for personal

injury actions. See Mass. Gen. Laws ch. 260, § 2A. We have

borrowed this prescriptive period for section 1983 cases arising

in Massachusetts, e.g., McIntosh, 71 F.3d at 34, and the parties

agree that the three-year period applies here.

The parties do not agree, however, on when the

limitation period began to run. As said, the confrontation

between the officers and the appellants occurred on May 12,

1994, yet no suit was commenced until October 9, 1997. The

appellants asseverate that this elapsed time is not fatal:

because they configured their claims as arising within the

contours of an ongoing conspiracy, the clock did not begin to

tick until the conclusion of the criminal trial (October 27,

1994), thus rendering their civil suit timely. The appellees

say that this reasoning elevates form over substance. Since the

triggering events occurred on May 12, 1994, they maintain that

the limitation period expired well before the appellants started

suit. For the most part, the district court agreed with the

appellees. See Nieves, 73 F. Supp. 2d at 103-04. So do we.

-10-
 This court determined more than two decades ago that,

in the context of a continuing conspiracy to violate civil

rights, the statute of limitations runs separately from the

occurrence of each civil rights violation that causes actual

damage to the plaintiff (as long as the plaintiff knows or

should have known of the injury). Hernandez Jimenez v. Calero

Toledo, 576 F.2d 402, 404 (1st Cir. 1978). In so holding, we

explicitly repudiated the notion, loudly bruited by the

appellants in this case, that the statute of limitations for

civil conspiracy should run from the date of the last overt act

that causes damage to the plaintiff. We stated:

We recognize that some courts have spoken of
the "last overt act" of a civil rights
conspiracy as the time from which the
statute begins to run, but do not believe
those courts meant to depart from the
traditional rule in civil conspiracies that
the mere fact of a conspiracy does not toll
the statute of limitations with respect to
earlier clear-cut violations of rights that
have not been concealed from the plaintiff.

Id. at 404 n.1 (citation omitted). 2 As the appellants do not

suggest that the violations that transpired in the course of

2The principal authority that the appellants cite in support
of their "last overt act" theory is Buford v. Tremayne, 747 F.2d
445, 448 (8th Cir. 1984) (opining that in a conspiracy action
"the statute of limitations begins to run from the occurrence of
the last overt act resulting in damage to the plaintiff").
Although this decision postdates Hernandez Jimenez, it
nonetheless falls squarely within the class of cases
contemplated by footnote 1 of the Hernandez Jimenez opinion.

-11-
this alleged conspiracy (such as the excessive use of force and

the false arrest) were concealed from them, Hernandez Jimenez

controls. See United States v. Wogan, 938 F.2d 1446, 1449 (1st

Cir. 1991) (holding that in a multi-panel circuit, prior panel

decisions generally are binding upon newly-constituted panels).

The appellants attempt to withstand this blow by

cloaking themselves in the protective armor of Robinson v.

Maruffi, 895 F.2d 649 (10th Cir. 1990). That armor does not

fit. The black-letter rule is that the statute of limitations

on a malicious prosecution claim begins to run upon the

termination of the antecedent criminal proceedings. Heck v.

Humphrey, 512 U.S. 477, 489 (1994). Applying this rule, the

Robinson court allowed a plaintiff to reach back to include

claims of false arrest and false imprisonment within a simple

civil conspiracy claim on a "continuing violation" theory, see

895 F.2d at 654-55, but it did so on facts that differ

significantly from the case at bar.

The most important distinction between these two cases

is that, in Robinson, the conspiratorial agreement arose before

the arrest; Robinson contended that the defendants formulated an

elaborate plan to frame him for the murder of a police officer

-12-
and then arrested him in furtherance of that plan.3 Id. at 655.

This sequencing meant that the arrest was encompassed within the

malicious prosecution conspiracy, and the statute of limitations

therefore began to run on all acts (including the arrest) only

when the criminal proceedings were terminated in Robinson's

favor.

Robinson is the unusual case in which the malicious

prosecution conspiracy began before the victim's arrest and

encompassed it. The case at bar is vastly different. Here, it

is undisputed that the officers and the appellants were

strangers to each other until the date of the arrest. It is

also undisputed that the officers went to the appellants' abode

in response to a third-party call. Under the appellants' own

theory of the case, the malicious prosecution conspiracy did not

antedate the arrest, but, rather, arose afterwards, sparked by

the officers' perceived need to cover up their unwarranted

brutality.

In comparable situations, we have determined the

conspiracy to be distinct from the events that triggered the

need for it. E.g., Landrigan v. City of Warwick, 628 F.2d 736,

3
Among other things, the plan involved surveilling
Robinson's associates, apprehending them for petty crimes, and
threatening them with incarceration unless they implicated
Robinson in the murder (for which he was then arrested and
prosecuted). Robinson, 895 F.2d at 651-53.

-13-
741 (1st Cir. 1980) (finding excessive force and a subsequent

coverup to be "separate and distinct wrongs resting on different

factual bases"). We reaffirm that view today and, accordingly,

reject the appellants' theory of a single, unified conspiracy

encompassing excessive use of force, false arrest, and malicious

prosecution. This means, of course, that the three-year statute

of limitations runs from each civil rights violation identified

in the complaint. See Hernandez Jimenez, 576 F.2d at 404.

With these dynamics in mind, we proceed to analyze the

operation of the statute of limitations in relation to each of

the component violations charged in the appellants' complaint.

We conduct this analysis mindful that the question of when a

cause of action accrues in a civil rights case is a matter of

federal law. Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349,

353 (1st Cir. 1992); Street v. Vose, 936 F.2d 38, 40 (1st Cir.

1991) (per curiam). Consequently, a section 1983 claim accrues

at the moment the plaintiff knows, or has reason to know, of the

injury that is the basis for the claim. Calero-Colon v.

Betancourt-Lebron, 68 F.3d 1, 3 (1st Cir. 1995).

Following this scheme, it is pellucid that all claims

based on the officers' physical abuse or arrest of the

appellants accrued at the time that those events occurred — May

12, 1994 — because the appellants had ample reason to know of

-14-
the injury then and there.4 See Beck v. City of Muskogee Police

Dep't, 195 F.3d 553, 558 (10th Cir. 1999) (explaining that

claims arising from police action toward a criminal suspect,

such as arrest and seizure, are presumed to accrue when the

actions occur); Sneed v. Rybicki, 146 F.3d 478, 481 (7th Cir.

1998) (observing that a section 1983 false arrest claim accrues

on the day of the arrest regardless of later proceedings);

McIntosh, 71 F.3d at 34 (determining that plaintiff's section

1983 claims for assault and false arrest accrued on the date

that the events occurred); Singleton v. City of New York, 632

F.2d 185, 191 (2d Cir. 1980) (similar). The statute of

limitations on these claims expired three years later — months

before the appellants filed suit. Accordingly, we uphold the

district court's conclusion that the alleged civil rights

violations predicated on excessive force and false arrest are

time-barred.

C. Malicious Prosecution.

Although two of the appellants' claims have foundered

on the shoals of the statute of limitations, one claim escapes

4
We deal here with the mine-run, acknowledging, however,
that there may be rare and exotic circumstances in which a
section 1983 claim based on a warrantless arrest will not accrue
at the time of the arrest. See Calero-Colon, 68 F.3d at 4-5
(Lynch, J., concurring). We are not faced with any such
situation today.

-15-
this prohibition. As we noted earlier, a cause of action for

malicious prosecution does not accrue until the termination of

the criminal proceedings. See Heck, 512 U.S. at 489. Since the

appellants filed their civil suit within three years of the

verdict that marked the end of the criminal case, this differing

accrual rule enables them to board the lifeboat of a section

1983 malicious prosecution claim and see how far that craft

takes them.

The elements of a common-law cause of action for

malicious prosecution are: (1) the commencement or continuation

of a criminal proceeding against the eventual plaintiff at the

behest of the eventual defendant; (2) the termination of the

proceeding in favor of the accused; (3) an absence of probable

cause for the charges; and (4) actual malice. Correllas v.

Viveiros, 572 N.E.2d 7, 10 (Mass. 1991). We assume, for

argument's sake, that the appellants made a sufficient showing

on these four points to avoid summary judgment.5 Even so, more

is needed to transform malicious prosecution into a claim

cognizable under section 1983. See Roche v. John Hancock Mut.

5
Of course, the jury convicted Angel Nieves on one count:
being a disorderly person. The parties hotly dispute whether an
acquittal on all counts but one is a termination of the criminal
proceedings in Angel's favor (and, thus, satisfies the second
prong of the four-part framework for malicious prosecution).
Given our ultimate conclusion that no constitutional deprivation
occurred, however, we need not resolve this dispute.

-16-
Life Ins. Co., 81 F.3d 249, 256 (1st Cir. 1996) (explaining that

"a garden-variety claim of malicious prosecution garbed in the

regalia of § 1983 must fail"). To bridge the gap, the plaintiff

also must show a deprivation of a federally-protected right.

Meehan v. Town of Plymouth, 167 F.3d 85, 88 (1st Cir. 1999);

Roche, 81 F.3d at 254.

The fact that a plaintiff styles her claim as a

conspiracy to prosecute her maliciously does not diminish her

need to show a constitutional deprivation. Singer v. Fulton

County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). In order to

make out an actionable conspiracy under section 1983, a

plaintiff has to prove not only a conspiratorial agreement but

also an actual abridgment of some federally-secured right.

Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988); Landrigan,

628 F.2d at 742. Moreover, it is the plaintiff's burden to

identify the specific constitutional right infringed. See

Albright v. Oliver, 510 U.S. 266, 271 (1994). In the end, this

requirement scuttles the appellants' claim.

It is perfectly clear that the Due Process Clause

cannot serve to ground the appellants' federal malicious

prosecution claim. No procedural due process claim can flourish

in this soil because Massachusetts provides an adequate remedy

for malicious prosecution. See Roche, 81 F.3d at 256 (citing,

-17-
inter alia, Beecy v. Pucciarelli, 441 N.E.2d 1035, 1038-39

(Mass. 1982)). Similarly, a plurality of the Supreme Court has

concluded that "substantive due process may not furnish the

constitutional peg on which to hang" a federal malicious

prosecution tort. Albright, 510 U.S. at 271 n.4. We have

followed the Court's lead in this respect, see, e.g., Roche, 81

F.3d at 256 (holding that there is no substantive due process

right under the Fourteenth Amendment to be free from malicious

prosecution), and we hew to that line today.

The Fourth Amendment, however, provides potentially

more fertile soil. It is an open question whether the

Constitution permits the assertion of a section 1983 claim for

malicious prosecution on the basis of an alleged Fourth

Amendment violation. See Albright, 510 U.S. at 271-75; Britton

v. Maloney, 196 F.3d 24, 28 (1st Cir. 1999), cert. denied, 120

S. Ct. 2198 (2000); Singer, 63 F.3d at 114. As in previous

cases, e.g., Britton, 196 F.3d at 28; Roche, 81 F.3d at 256 n.5,

we will assume without deciding that malicious prosecution can,

under some circumstances, embody a violation of the Fourth

Amendment and thus ground a cause of action under section 1983.

We turn, then, to a consideration of whether the facts of this

case suffice to sustain such a claim.

-18-
 The Fourth Amendment provides that "[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not

be violated . . . ." U.S. Const. amend. IV. For a public

official to transgress the Fourth Amendment through the

initiation and pursuit of criminal charges, the prosecution of

those charges must at a bare minimum have occasioned a

deprivation of liberty consistent with the concept of a seizure.

Britton, 196 F.2d at 28; Singer, 63 F.3d at 116.

The appellants assert that they were "seized" for

Fourth Amendment purposes from the time of their arrest through

the end of their criminal trial. But this assertion rests on a

flawed premise. The tort of malicious prosecution permits

damages for a deprivation of liberty — a seizure — pursuant to

legal process. Heck, 512 U.S. at 484; Calero-Colon, 68 F.3d at

3. Generally, the offending legal process comes either in the

form of an arrest warrant (in which case the arrest would

constitute the seizure) or a subsequent charging document (in

which case the sum of post-arraignment deprivations would

comprise the seizure). Singer, 63 F.3d at 117. The first of

these variations has no bearing here. The appellants were

arrested without a warrant and, thus, their arrests — which

antedated any legal process — cannot be part of the Fourth

-19-
Amendment seizure upon which they base their section 1983

claims.

Meehan aptly illustrates this point. There, the

plaintiff attempted to base a section 1983 malicious prosecution

claim on his warrantless arrest. 167 F.3d at 89. We rejected

this initiative, stating:

Meehan may not bring a malicious prosecution
claim based upon his arrest because his
arrest does not constitute the "initiation
of proceedings" against Meehan. . . .
Meehan's arrest was not made pursuant to an
arrest warrant. Meehan cites no authority
for the proposition that a malicious
prosecution cause of action may be based
upon a warrantless arrest.

Id. at 89-90 (internal citation and footnote omitted). Accord

Singer, 63 F.3d at 117.

This leaves the appellants with the task of showing

some post-arraignment deprivation of liberty, caused by the

application of legal process, that approximates a Fourth

Amendment seizure. Following a thoughtful analysis, the

district court concluded that the appellants could not vault

this hurdle. Nieves, 73 F. Supp. 2d at 105. We agree.

It is undisputed that the first time the appellants

were subject to legal process was on May 13, 1994 (when criminal

complaints against them issued). Taking the facts from the

standpoint most favorable to the appellants, as we must, see

-20-
Houlton Citizens' Coalition, 175 F.3d at 184, the following

events occurred after that time: the appellants were released

on their own recognizance; they suffered the stress and anxiety

of knowing not only that serious criminal charges were pending

against them, but also that their reputations had been sullied;

they appeared before the criminal court a number of times in the

pretrial period; and they endured the trial. The question thus

becomes: do these strictures, in the aggregate, constitute a

Fourth Amendment seizure sufficient to ground a section 1983

malicious prosecution claim?

In the classic formulation, a Fourth Amendment seizure

occurs "[o]nly when the officer, by means of physical force or

show of authority, has in some way restrained the liberty of a

citizen." Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). In this

case, there was no physical force during the post-arraignment

period. The appellants' position, by default, is that their

liberty was restrained by a show of authority, manifested most

clearly by a series of orders to appear before the court. By

obeying these orders, the appellants assert, they yielded to a

show of authority, completing the seizure. Cf. California v.

Hodari D., 499 U.S. 621, 626 (1991) (holding that a show of

authority by a government actor does not constitute a seizure

unless the subject yields or submits to it).

-21-
 This proposition is counterintuitive. The very idea

of defining commonplace conditions of pretrial release as a

"seizure" for Fourth Amendment purposes seems to stretch the

accepted meaning of the term. After all, a seizure under Fourth

Amendment jurisprudence is generally a discrete event,

quintessentially an arrest, see id. at 624, or at least a

physical detention, see Terry, 392 U.S. at 16-19. Thus, seizure

jurisprudence traditionally has centered on the initial

deprivation of liberty that a seizure of the person entails.

Since "[a] seizure is a single act, and not a continuous fact,"

Hodari D., 499 U.S. at 625 (quoting Thompson v. Whitman, 85 U.S.

(18 Wall.) 457, 471 (1873)), run-of-the-mill conditions of

pretrial release do not fit comfortably within the recognized

parameters of the term.

Moreover, if the concept of a seizure is regarded as

elastic enough to encompass standard conditions of pretrial

release, virtually every criminal defendant will be deemed to be

seized pending the resolution of the charges against him. That

would mean, in turn, that nearly every malicious prosecution

claim could be brought before a federal court under the aegis of

section 1983. We believe that this is much too ambitious a view

of the law. Cf. Roche, 81 F.3d at 256 (indicating that "garden-

-22-
variety" malicious prosecution claims are appropriately left to

state courts).

Despite these obvious conceptual problems, a concurring

opinion in Albright fully supports the claim that the appellants

were "seized" within the purview of the Fourth Amendment based

on their compliance with the obligation to appear in court at

the commonwealth's command. In that concurrence, Justice

Ginsburg advocated the position that an individual who is

released pending trial should be deemed "seized" because such a

person "is scarcely at liberty; he remains apprehended, arrested

in his movements, indeed 'seized' for trial, so long as he is

bound to appear in court and answer the state's charges."

Albright, 510 U.S. at 279 (Ginsburg, J., concurring). Justice

Ginsburg understands this seizure to last as long as the charges

against the individual remain unadjudicated.6 Id. at 280.

Notwithstanding the eminence of its sponsor, the view

that an obligation to appear in court to face criminal charges

constitutes a Fourth Amendment seizure is not the law. No other

Justice joined Justice Ginsburg's opinion, and "the question

whether the Fourth Amendment continues to provide individuals

6
Justice Ginsburg went to some lengths to make this point,
as Albright itself involved a defendant who had been required to
post bond and had been placed under travel restrictions.
Albright, 510 U.S. at 268.

-23-
with protection against the deliberate use of excessive physical

force beyond the point at which arrest ends and pretrial

detention begins," Graham v. Connor, 490 U.S. 386, 395 n.10

(1989), remains unresolved by the Supreme Court. Moreover, two

of our sister circuits have explicitly rejected Justice

Ginsburg's theory. See Riley v. Dorton, 115 F.3d 1159, 1162

(4th Cir. 1997) (en banc); Reed v. City of Chicago, 77 F.3d

1049, 1052 n.3 (7th Cir. 1996). Another has expressed grave

reservations concerning it. See Whiting v. Traylor, 85 F.3d

581, 584 (11th Cir. 1996).

This court, too, has declined to embrace the whole of

Justice Ginsburg's view. See Britton, 196 F.3d at 29-30. In

that case, a plaintiff alleging a section 1983 malicious

prosecution claim argued that he was seized for Fourth Amendment

purposes because he had received a summons in the mail. Id. at

29. Although Justice Ginsburg clearly would have accepted this

contention, see Albright, 510 U.S. at 279 (Ginsburg, J.,

concurring) (observing that a defendant is "seized" when bound

to appear for trial by a summons), we spurned it, writing:

Absent any evidence that Britton was
arrested, detained, restricted in his
travel, or otherwise subject to a
deprivation of his liberty before the
charges against him were dismissed, the fact
that he was given a date to appear in court
is insufficient to establish a seizure
within the meaning of the Fourth Amendment.

-24-
Britton, 196 F.3d at 30. In making this determination, we

relied on cases such as Brower v. County of Inyo, 489 U.S. 593

(1989), in which the Court held that "[v]iolation of the Fourth

Amendment requires an intentional acquisition of physical

control," id. at 596, and that a Fourth Amendment seizure occurs

"only when there is a governmental termination of freedom of

movement through means intentionally applied," id. at 597

(emphasis omitted). We were unable to reconcile the limited

demands that the summons imposed on Britton with concepts such

as "physical control" and "termination of freedom of movement."

The case before us, though somewhat stronger, bears a

fairly resemblance to Britton. Canvassing the relevant time

frame, we find no evidence that the appellants were held after

the initiation of criminal proceedings, required to post a

monetary bond upon arraignment, subjected to restrictions on

their travel, or otherwise exposed to any significant

deprivation of liberty. While the imposition upon the

appellants here was marginally greater than the imposition upon

Britton — they were required to appear several times at the

court's behest (including an appearance for trial) — the fact

remains that the conditions of pretrial release to which they

were subjected simply do not approach the level necessary to

constitute a Fourth Amendment seizure.

-25-
 In an effort to persuade us to a contrary conclusion,

the appellants point to three decisions that have given some

degree of traction to Justice Ginsburg's concurrence. Their

bellwether case is Evans v. Ball, 168 F.3d 856 (5th Cir. 1999).

There, the Fifth Circuit determined that the plaintiff in a

Bivens action had alleged a seizure within the meaning of the

Fourth Amendment based on the following: (1) the plaintiff's

receipt of a summons to appear and answer to criminal charges;

(2) his being fingerprinted, photographed, and forced to sign a

personal recognizance bond; and (3) his being required to report

regularly to pretrial services, obtain permission before leaving

the state, and provide federal officers with financial and

identifying information. Id. at 860-61. The court concluded

that the restrictions imposed on the plaintiff diminished his

liberty interest enough to render him seized under the Fourth

Amendment. Id. at 861.

The appellants' other two cases are cut from much the

same cloth. In Gallo v. City of Philadelphia, 161 F.3d 217 (3d

Cir. 1998), the court, calling it a "close question," decided

that a section 1983 plaintiff had been seized in the

constitutional sense where he was required to post a $10,000

bond, attend all court hearings including his trial, contact

pretrial services weekly, and refrain from traveling outside New

-26-
Jersey and Pennsylvania. Id. at 222. So too Murphy v. Lynn,

118 F.3d 938 (2d Cir. 1997), a two-to-one decision in which the

panel determined that a plaintiff's obligation to attend court

appointments, combined with a prohibition against leaving New

York, constituted a seizure within the meaning of the Fourth

Amendment. Id. at 945.

We need not comment upon the soundness of these

decisions. For present purposes, it suffices to say that they

are materially distinguishable. To mention the most glaring

difference, all three cases involved definitive restrictions on

the right to travel, and each of the courts in question placed

heavy emphasis on the salience of such a restriction as a

linchpin of a seizure. See Evans, 168 F.3d at 861-62; Gallo,

161 F.3d at 224; Murphy, 118 F.3d at 945-46. Conversely, no

such restriction was in force vis-à-vis the appellants. For

this reason, and because the aggregate deprivations involved in

Evans, Gallo, and Murphy substantially exceeded the overall

deprivation imposed here, we regard the cases as inapposite.

That ends this aspect of the matter. Given the

relatively benign nature of the pretrial release conditions

involved in this case, we hold that the appellants did not

suffer a post-arraignment seizure within the meaning of the

Fourth Amendment. It follows inexorably that, in the absence of

-27-
an anchoring constitutional violation, the appellants' section

1983 malicious prosecution claim topples.

III. CONCLUSION

We need go no further.7 A ripe civil rights suit was

left to rot. Most of the appellants' claims are barred by the

operation of the statute of limitations; those that are not fail

for lack of a constitutionally significant deprivation. We

therefore affirm the district court's entry of summary judgment

on the appellants' federal claims.

Affirmed.

7
The appellants also complain that the district court
frustrated their efforts during pretrial discovery to question
McSweeney about other incidents of police brutality. They claim
that they had a good-faith basis for the queries (a 1997
investigatory report concluded that McSweeney had demonstrated
a pattern of needless provocation and excessive force in making
arrests) and that the information sought was relevant. But we
have concluded that the grant of summary judgment must be upheld
based on the statute of limitations (as to some claims) and the
lack of a constitutional deprivation (as to the remaining
claims), see supra Part II, and no amount of discovery anent
other incidents can alter this result. It is, therefore, a moot
point whether the discovery limitation was right or wrong.

-28-