United States Court of Appeals
Fifth Circuit
F I L E D
Revised December 29, 2003
December 5, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 00-50591
ALFRED CASTELLANO,
Plaintiff-Appellee,
versus
CHRIS FRAGOZO, Etc.; ET AL,
Defendants,
CHRIS FRAGOZO, Individually and in his
Official Capacity as a San Antonio Police Officer;
MARIA SANCHEZ, Individually,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas
Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,
STEWART, DENNIS, CLEMENT, and PRADO, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Today we examine our uncertain law attending a claim of
malicious prosecution with its undisciplined mix of constitutional
and state tort law. We decide that “malicious prosecution”
standing alone is no violation of the United States Constitution,
and that to proceed under 42 U.S.C. § 1983 such a claim must rest
upon a denial of rights secured under federal and not state law.
Alfred Castellano sought damages for his wrongful conviction
of arson, asserting claims under the First, Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendments. Before trial the magistrate
judge concluded that alleging the elements of malicious prosecution
under Texas law stated a claim, but only under the Fourth
Amendment. The trial judge passed over defendants’ claim of
absolute immunity, accepting their argument that the Supreme Court
in Albright v. Oliver1 held that if there is an adequate state tort
remedy there can be no claim for a denial of due process, and
dismissed all claims under any other constitutional provision.
With the Texas law of malicious prosecution now the source for his
§ 1983 claim, Castellano amended his complaint, dropping his state
law claim. A jury returned a substantial award of money damages.
We conclude that the trial court’s reading of Albright, while
clinging to the law of this circuit, simultaneously misread both
the Fourth and Fourteenth Amendments. As for the Fourteenth
Amendment claims, we reject the trial court ruling that there was
no denial of due process, either in its primitive form that § 1983
cannot sustain such a claim, or because the state provides a post-
deprivation tort remedy. We hold that a state’s manufacturing of
evidence and knowing use of that evidence along with perjured
testimony to obtain a wrongful conviction deprives a defendant of
his long recognized right to a fair trial secured by the Due
1
510 U.S. 266, 271 (1994).
2
Process Clause, a deprivation of a right not reached by the
Parratt2 doctrine. At the same time, we note that Castellano faces
obstacles in pursuing his wrongful conviction claims on remand
given that Sanchez and Fragozo enjoy absolute immunity for their
testimony at trial and have substantial arguments that their
manufacturing of evidence could not have created, without the trial
testimony, a wrongful conviction.
Given that the district court dismissed the Fourteenth
Amendment claims, albeit erroneously, the verdict cannot be
sustained on the Fourth Amendment alone since it rests in part on
events at trial - events not protected by the Fourth Amendment. It
is not possible to separate the damages awarded for violations of
the Fourth Amendment from those awarded for wrongful conviction.
Nor can we sustain the verdict because the jury effectively decided
the Fourteenth Amendment claim.
We begin by reciting the history of the case. We then examine
the development of malicious prosecution as a claim under § 1983 –
including the contours of the state law tort, its early development
as a federal claim in this circuit, as well as the impact of
Albright v. Oliver3 on this circuit’s precedent. After examining
our own law, we turn to the law of other circuits and conclude that
“malicious prosecution” standing alone is no violation of the
2
Parratt v. Taylor, 451 U.S. 527 (1981).
3
510 U.S. 266 (1994).
3
United States Constitution. We then return to the case at hand,
and in doing so we examine Albright, finding no support there for
the magistrate judge’s ruling that by using the elements of the
state tort of malicious prosecution, Castellano’s full claim could
be tethered to the Fourth Amendment. We conclude by finding that
the verdict cannot be sustained and that the case must be remanded
for a new trial.
I
1
All of this stems from a case drawn from the entangled lives
of Alfred Castellano, Maria Sanchez, a trusted employee, and Chris
Fragozo, a City of San Antonio police officer who did security work
for Castellano’s chain of fast order restaurants around the city of
San Antonio called Fred’s Fish Fry. Castellano worked for his
father in starting the business, primarily offering fried catfish
and chicken to go. There were three stores when his father died
and eighteen on October 31, 1984, when one of the restaurants,
Number 7, burned. By this time, Castellano’s business was
prospering and he held a prominent citizen’s position on the Fire
and Police Civil Service Commission, hearing appeals of police
personnel from decisions of the Chief of Police.
Officer Castro, a veteran police officer and member of the
Arson Squad, quickly determined that the fire had been
intentionally set and was an “inside job.” That it was arson has
4
never been an issue. The investigation led to Castellano, largely
on the testimony of Maria Sanchez and a tape recording she produced
with a recorder supplied by Fragozo.
Castro and his partner took the case to the District Attorney,
who prepared and, along with Castro, signed an affidavit. Castro
presented the affidavit to a magistrate judge who issued an arrest
warrant. Castro arrested Castellano, taking him to the police
station. He was released a few hours later after being booked and
facing an array of cameras. A later examining trial found probable
cause to proceed. A grand jury indictment and trial followed.
Castellano was convicted in a prominent jury trial by a state court
jury in San Antonio and sentenced to five years probation.
Throughout Castellano denied involvement in the arson. His
story was that he fired Maria when she refused to take a polygraph,
a company policy when money was missing; that Maria and Fragozo
were lovers; and that he had refused to give Fragozo a copy of a
police examination Fragozo had to pass for promotion. Maria’s
story was that Castellano had sought her help in the arson and she
taped conversations with him to protect herself if he did burn the
restaurant.
In 1993, on his third habeas attempt, the Texas Court of
Criminal Appeals set aside the conviction and remanded the case to
the trial court. The District Attorney then dismissed the case for
“lack of sufficient evidence,” a predictable outcome given the
5
findings of the state habeas judge adopted by the Texas Court of
Criminal Appeals.
The findings included:
Chris Fragozo, a police officer with the City of San
Antonio, attempted to enlist Clemencia Jiminez as a
witness against Applicant and aided Maria Sanchez in
altering the tape recordings offered into evidence. The
tapes were altered to appear that the Applicant was
admitting to the arson when in fact he had no knowledge
of its commission.
Maria Sanchez and Chris Fragozo collaborated together and
without their testimony and the altered tapes, there is
insufficient evidence to sustain a finding of guilt in
this case.4
Following the dismissal of charges, Castellano filed suit in
the District Court of the 288th Judicial District, Bexar County,
Texas, against Sanchez, Fragozo and Castro, in both their
individual and official capacities, and the City of San Antonio.
Castellano claimed in this § 1983 suit that defendants were guilty
of malicious prosecution and had denied him rights secured by the
First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.
The case was removed to federal court and referred to a
magistrate judge, where it was mired in pretrial proceedings over
the next six years. During these proceedings, all defendants,
except Castro, Sanchez, and Fragozo, were dismissed. And,
critically, the magistrate judge’s focus was upon the elements of
the Texas law of malicious prosecution as sufficient to state a
4
Ex parte Castellano, 863 S.W.2d 476, 479 (Tex. Crim. App.
1993).
6
constitutional violation with little examination of particular
violation beyond the conclusion that “malicious prosecution” could
proceed only under the Fourth Amendment – but not the Fourteenth.
This view simultaneously took out the Fourteenth Amendment and
overlooked the limits of the Fourth, as we will explain. The case
was tried to a seven-person jury, which returned a verdict awarding
$3,000,000 in compensatory damages and $500,000 in punitive damages
against Sanchez and Fragozo while exonerating Officer Castro. A
divided panel of this court upheld the judgment entered on the
verdict, and en banc review was granted.
2
The civil trial was a retrial of the criminal case. In large
terms the jury was asked to decide whether Castellano was an
arsonist or reasonably believed to be so, or rather, whether he was
the victim of a conspiracy between Sanchez and Fragozo, joined by
Castro, an ambitious cop. The jury plainly was persuaded that
Castellano was the victim of Sanchez and Fragozo, but not Castro.
With only the Fourth Amendment claim left in the case, the
trial court instructed the jury:
Castellano claims that Alfred Castro and Chris Fragozo,
while acting under color of law, intentionally violated
his constitutional right to due process by maliciously
prosecuting him for the criminal offense of arson.
Castellano further claims that Maria Sanchez, as an
individual, intentionally violated the same
constitutional right.
The jury was told that Castellano must prove that
7
[t]he defendants caused or commenced or aided a criminal
proceeding against him; the defendants acted without
probable cause; the criminal action terminated in his
favor; he was innocent of arson; the defendants acted
with malice by prosecuting him for arson; [and] he was
damaged by the criminal proceeding.
3
Fragozo and Sanchez argue here that the judgment against them
rests on an impermissible blend of state tort and constitutional
rights and that Castellano at best has only a Fourth Amendment
claim.
Castellano urges that all damages flow from the initial
wrongful arrest and seizure in violation of the Fourth Amendment,
a theory of recovery not forbidden by Albright; and that all of his
claims under the First, Sixth, Eighth, and Fourteenth Amendments
were dismissed at the urging of the defendants who did not object
to the jury charge, and thus they cannot complain that the trial
itself reintroduced Castellano’s due process claims, claims that
were properly before the jury. As we will explain, we agree that
the trial court’s instructions were erroneous, although in
conformity with existing law of the circuit. Contrary to
defendants’ contentions, the error was in not allowing the jury to
consider fully the claim of wrongful conviction by extruding it
through the Fourth Amendment.
II
1
8
We have been inexact in explaining the elements of a claim for
malicious prosecution brought under the congressional grant of the
right of suit under 42 U.S.C. § 1983. We are not alone. Other
circuits have been facing similar difficulties and share with us a
common shortcoming – either not demanding that this genre of claims
identify specific constitutional deprivations or struggling in
their efforts to do so. This laxness has tolerated claims in which
specific constitutional violations are often embedded, but float
unspecified, undefined, and hence unconfined inside a general claim
of malicious prosecution. Its characteristic weak discipline has
permitted the blending of state tort and constitutional principles,
inattentive to whether the court is adopting state law as federal
law in a process of federal common law decision-making, such as
detailing remedial responses to a constitutional deprivation, or
whether the court is creating a freestanding constitutional right
to be free of malicious prosecution. On examination, the latter
appears to rest on a perception that the sum of elements borrowed
from state tort law by some synergism is a constitutional right
itself – in its best light, that the elements of the state law tort
of malicious prosecution, when proved, inevitably entail
constitutional deprivation. While sometimes this is so, it is not
inevitable, and the price of cutting the tether from constitutional
text is too great to permit it to continue.
We are persuaded that we must return to basics. And in doing
so we conclude that no such freestanding constitutional right to be
9
free from malicious prosecution exists. This conclusion in turn
means that we must insist on clarity in the identity of the
constitutional violations asserted. In this effort, we first look
at the state law tort of malicious prosecution and then look to the
enforcement of constitutional protections enjoyed by persons
accused of crimes, all as informed by the decision of the Supreme
Court in Albright v. Oliver.5
2
Despite frequent use of the term “malicious prosecution” to
describe a wide range of events attending a filing of criminal
charges and even continuing through trials, the tort of malicious
prosecution has a relatively narrow and widely accepted definition.
The tort of malicious prosecution of criminal proceedings
occurs when one citizen initiates or procures the
initiation of criminal proceedings against an innocent
person, for an improper purpose and without probable
cause therefor, if the proceedings terminate favorably
for the person thus prosecuted.6
It signifies that initiation of charges without probable cause lies
at the heart of this definition, one that is deployed by state
courts throughout the country, including Texas.7
3
5
510 U.S. 266 (1994).
6
FOWLER V. HARPER ET AL., THE LAW OF TORTS § 4.1 (3d ed. 1996).
7
See Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517-18
(Tex. 1997).
10
In Shaw v. Garrison, we recognized a “federal right to be free
from bad faith prosecutions” without elaborating on the source of
that right.8 Twelve years later we held in Wheeler v. Cosden Oil
& Chemical Co. that “the Fourteenth Amendment imposes a duty on
state prosecutors to charge only upon ascertaining probable
cause.”9 Judge Gee’s opinion, thoughtful as it was, proved to be
a wrong turn – one quickly flagged but which nonetheless stood
until Albright, ten years later. Wheeler’s requirement of probable
cause to initiate gave common footing to a right secured by the
Fourteenth Amendment to be free of charges initiated without
probable cause and the identical duty imposed by the classic common
law tort of malicious prosecution. The ability of the Wheeler
holding to survive Supreme Court scrutiny was questioned in
Brummett v. Camble because it was based on an implied right rather
than a “more textual footing.”10 But the Brummett opinion ventured
that a malicious prosecution claim based on the infringement of a
specific constitutional guarantee would survive review.11 Other
pre-Albright cases recognized that claims of false arrest, false
imprisonment, and malicious prosecution could implicate Fourteenth
and Fourth Amendment rights “when the individual complains of an
8
467 F.2d 113, 120 (5th Cir. 1972).
9
734 F.2d 254, 260 (5th Cir. 1984).
10
946 F.2d 1178, 1181 n.2 (5th Cir. 1991).
11
Id.
11
arrest, detention, and prosecution without probable cause.”12 None
of this court’s pre-Albright decisions achieved a fit between a
claim of malicious prosecution and claims under the Constitution,
including the Fourth Amendment. The Supreme Court in Albright v.
Oliver13 defined a starting point.
4
Albright alleged that Officer Oliver instituted a baseless
charge against him and gave misleading testimony at a preliminary
hearing.14 The state court found probable cause to try Albright,
but the charges were dismissed prior to trial.15 Albright sued
under § 1983 claiming the officer “deprived him of substantive due
process under the Fourteenth Amendment – his ‘liberty interest’ –
to be free from criminal prosecution except upon probable cause.”16
Chief Justice Rehnquist’s plurality opinion, joined by
Justices O’Connor, Scalia, and Ginsberg, held that “it is the
Fourth Amendment, and not substantive due process” under which
Albright’s claim must be judged.17 The plurality reasoned that the
12
Thomas v. Kipperman, 846 F.2d 1009, 1011 (5th Cir. 1988);
see also Sanders v. English, 950 F.2d 1152, 1159 (5th Cir. 1992)
(same).
13
510 U.S. 266 (1994).
14
Id. at 269.
15
Id.
16
Id.
17
Id. at 271.
12
Fourth Amendment addresses concerns of pretrial deprivations of
liberty, and “[w]here a particular Amendment ‘provides an explicit
textual source of constitutional protection’ against a particular
sort of government behavior, ‘that Amendment, not the more
generalized notion of ‘substantive due process,’ must be the guide
for analyzing these claims.’”18 Noting that Albright’s claim was
not for a violation of procedural due process or a violation of
Fourth Amendment rights, the Court dismissed it and expressed no
view on whether his claim would succeed under the Fourth
Amendment.19
Justices Souter and Scalia each wrote separately to emphasize
differences with the plurality, but each agreed that there was no
need to look beyond the Fourth Amendment in Albright’s case.20
Justice Ginsburg’s separate opinion explained that the Fourth
Amendment prohibition on unreasonable seizures could extend to
post-arraignment travel restrictions such as those placed on
Albright, and thus a Fourth Amendment claim would not accrue until
the charges against Albright were dismissed.21
18
Id. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)).
19
Id. at 271, 275.
20
Id. at 286-89 (Souter, J., concurring); id. at 275-76
(Scalia, J., concurring).
21
Id. at 277-81 (Ginsburg, J., concurring).
13
Justice Kennedy, joined by Justice Thomas, agreed that the
Fourth Amendment applied to claims of unreasonable seizures, but
felt that Albright’s claim was for the instigation of the
prosecution, not any resulting seizure.22 He stated that while “due
process requirements for criminal proceedings do not include a
standard for the initiation of a criminal prosecution,” the “Due
Process Clause protects interests other than the interest in
freedom from physical restraint.”23 Assuming arguendo that some of
these interests protected by the Due Process Clause include those
protected by the common law of torts (such as freedom from
malicious prosecution), Kennedy stated that “our precedents make
clear that a state actor’s random and unauthorized deprivation of
that interest cannot be challenged under [§ 1983] so long as the
State provides an adequate postdeprivation remedy.”24 Kennedy
concluded that because the state provides a cause of action for
malicious prosecution, a § 1983 claim is barred under the holding
of Parratt.25 Where a state did not provide a tort remedy for
22
Id. at 281 (Kennedy, J., concurring).
23
Id. at 283.
24
Id. at 284 (citing Parratt v. Taylor, 451 U.S. 527, 535-544
(1981)).
25
Id. at 285-86. Justice Stevens took issue with this
interpretation of Parratt in his dissent, arguing that Parratt only
applies to those torts which any person could commit, and “its
rationale does not apply to officially authorized deprivations of
liberty or property.” Id. at 313 (Stevens, J., dissenting).
14
malicious prosecution “there would be force to the argument that
the malicious initiation of a baseless criminal prosecution
infringes an interest protected by the Due Process Clause and
enforceable under § 1983.”26
5
A series of our post-Albright decisions evolved into the rule
articulated in Gordy v. Burns,27 the decision the panel majority
found to be controlling.28 Gordy holds that “the rule in this
circuit is that the elements of the state-law tort of malicious
prosecution and the elements of the constitutional tort of ‘Fourth
Amendment malicious prosecution’ are coextensive.”29 Furthermore,
“a plaintiff in a § 1983 malicious prosecution action need
establish only the elements of common-law malicious prosecution. .
. . [C]ourts must look to the elements of a malicious prosecution
claim under the law of the state where the offense was committed.”30
This holding is the result of persisting uncertainties in
precedent accumulating over time. Judge Barksdale’s dissent from
the panel majority observes that the post-Albright cases failed to
26
Id. at 286 (Kennedy, J., concurring).
27
294 F.3d 722 (5th Cir. 2002).
28
Castellano v. Fragozo, 311 F.3d 689, 698-99 (5th Cir. 2002).
29
Gordy, 294 F.3d at 725 (citing Piazza v. Mayne, 217 F.3d
239, 245 (5th Cir. 2000)).
30
Id. at 726.
15
distinguish our prior precedent which relied on the Fourteenth
Amendment, a position his dissent urges Albright called into
question.31 We add that many of the recent cases fail to note the
qualifying language of earlier decisions, which state that
malicious prosecution claims implicate the Fourth and Fourteenth
Amendments “‘when the individual complains of an arrest, detention,
and prosecution without probable cause.’”32 As we will explain,
Albright did not speak to the Fourteenth Amendment beyond eschewing
reliance upon substantive due process to create a requirement of
probable cause to initiate a prosecution, albeit a holding that
drained Wheeler of precedential force.
To look forward, we first look back to find the trace to Gordy
that will inform our effort to chart a new path. Gordy relied on
Piazza,33 acknowledging that we assumed without deciding that
satisfying the Texas state law elements was sufficient.34
Similarly, Gordy relied on Evans,35 which in turn cites Brummett for
31
See Castellano, 311 F.3d at 722-24 (Barksdale, J.,
dissenting).
32
Id. at 722 (quoting Sanders v. English, 950 F.2d 1152, 1159
(5th Cir. 1992)).
33
See Gordy, 294 F.3d at 725.
34
See Piazza v. Mayne, 217 F.3d 239, 245 (5th Cir. 2000)
(“Piazza asserts on appeal (and Mayne does not dispute) that the
requirements of the state law tort and the constitutional tort are
the same. Thus, we assume without deciding that the requirements
are coextensive in the context of a § 1983 action.”).
35
See Gordy, 294 F.3d at 725.
16
the holding that “malicious prosecution may be a constitutional
violation, but only if all of its common law elements are
established.”36 Yet Brummett made clear that “the federal courts
have repeatedly held that common law and state tort law do not
define the scope of liability under § 1983.”37 The court in
Brummett did look to the common law elements of malicious
prosecution, and out of concern that plaintiffs would relitigate
state convictions in federal court, adopted the common law element
that the plaintiff show proof of favorable termination of the
prosecution.38 Similar concerns led the Supreme Court to adopt an
analogous element as well.39 Brummett did not, however, hold that
all common law tort elements were required for a federal claim.
Finally, Gordy relied on Kerr.40 Kerr states without
explanation that the elements for a § 1983 claim of malicious
36
Evans v. Ball, 168 F.3d 856, 863 n.9 (5th Cir. 1999) (citing
Brummett v. Camble, 946 F.2d 1178, 1183 (5th Cir. 1991)).
37
Brummett, 946 F.2d at 1183.
38
Id. at 1183-84.
39
See Heck v. Humphrey, 512 U.S. 477, 484-87 (1994) (holding
that “in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's
issuance of a writ of habeas corpus”).
40
See Gordy, 294 F.3d at 725 (citing Kerr v. Lyford, 171 F.3d
330 (5th Cir. 1999)).
17
prosecution are those of Texas state law, citing Hayter v. City of
Mount Vernon.41 Hayter cites Taylor v. Gregg,42 which relies in turn
on Brown v. United States.43 As the Gordy opinion notes, Brown was
a Federal Tort Claims Act case, and the FTCA requires the court to
look to the law of the place where the alleged tort occurred.44 In
none of the opinions that ultimately rely on Brown did we explain
why the requirements of the FTCA should dictate the elements of a
§ 1983 claim.
With hindsight, our precedent governing § 1983 malicious
prosecution claims is a mix of misstatements and omissions which
leads to the inconsistencies and difficulties astutely pointed to
in Judge Barksdale’s dissent from the panel opinion and Judge
Jones’s special concurrence in Kerr.45 We are not alone in this
drift. Other circuits have traveled uneven paths as well, and
numerous approaches have developed after Albright.
6
41
Kerr, 171 F.3d at 340 (citing Hayter, 154 F.3d 269, 275 (5th
Cir. 1998)).
42
See Hayter, 154 F.3d at 275 (citing Taylor, 36 F.3d 453, 455
(5th Cir. 1994)).
43
Taylor, 36 F.3d at 455 (citing Brown, 653 F.2d 196, 198 (5th
Cir. 1981)).
44
See Gordy, 294 F.3d at 726 n.3.
45
See Kerr, 171 F.3d at 342-43 (Jones, J., specially
concurring).
18
Our sister circuits take two broad approaches to malicious
prosecution claims under § 1983. The first is to require proof of
all common law elements of malicious prosecution, usually based on
the law of the state where the offense occurred, as well as proof
of a constitutional violation – an approach adopted in various
forms by the First, Second, Third, Ninth, and Tenth Circuits.46 The
second approach views malicious prosecution as unenforceable under
§ 1983, looking to the common law elements of the tort only as
needed to assist the enforcement of analogous constitutional
violations - seizures under the Fourth Amendment, for example.
This is the view of the Fourth, Seventh, and Eleventh Circuits.47
The approach of the Sixth Circuit is not clear, as it also has
conflicting precedents and has yet to articulate the elements of a
§ 1983 malicious prosecution claim.48 Similarly, the Eighth
Circuit’s approach is undefined beyond insisting upon a
constitutional violation.49
46
See infra notes 50-67 and accompanying text.
47
See infra notes 68-81 and accompanying text.
48
See Thacker v. City of Columbus, 328 F.3d 244, 258-59 (6th
Cir. 2003) (noting that contrary to binding circuit precedent, some
panels do not recognize a § 1983 malicious prosecution claim, and
stating that the circuit has yet to define the elements of a
federal malicious prosecution claim).
49
See Pace v. City of Des Moines, 201 F.3d 1050, 1055 (8th
Cir. 2000) (“It is well established in this circuit that an action
for malicious prosecution by itself is not punishable under § 1983
because it does not allege a constitutional injury.” (internal
quotations and citations omitted)).
19
In Nieves v. McSweeney, the First Circuit cited four state
common law elements it requires for a malicious prosecution claim.50
But the court then stated that the plaintiff “must show a
deprivation of a federally-protected right.”51 The court reasoned
that procedural due process cannot be the basis of the claim
because Massachusetts provides an adequate remedy, and Albright
forecloses substantive due process claims.52 The court “assume[d]
without deciding that [a state law] malicious prosecution can,
under some circumstances, embody a violation of the Fourth
Amendment and thus ground a cause of action under section 1983.”53
Turning to the case at bar, the court acknowledged that while
malicious prosecution permits damages for deprivations of liberty
pursuant to legal process, the plaintiffs had been arrested without
a warrant. Therefore, the plaintiffs failed to allege a seizure
which could be part of their malicious prosecution since a
50
241 F.3d 46, 53 (1st Cir. 2001) (listing (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).
51
Id.
52
Id.
53
Id. at 54; see Britton v. Maloney, 196 F.3d 24, 28 (1st Cir.
1999) (“We will simply assume, for the purposes of the analysis,
that the type of conduct which constitutes a malicious prosecution
under state law can sometimes constitute a violation of the Fourth
Amendment as well.”).
20
warrantless arrest is not pursuant to legal process.54 The
plaintiffs’ post-arraignment restrictions and harms (release on
their own recognizance, pending serious criminal charges, sullied
reputations, pretrial court appearances, and trial) were not
seizures.55
The Second Circuit also requires proof of a tort under state
common law and an injury caused by a deprivation of liberty
guaranteed by the Fourth Amendment.56 That court has noted that it
is “theoretically possible” for a plaintiff to premise a malicious
prosecution claim on some other constitutional right, in which case
the standard governing that right would determine whether there was
a constitutional violation.57 Like the First Circuit, the Second
requires a seizure pursuant to legal process, ruling out
warrantless arrests.58 However, the Second Circuit has found that
54
Nieves, 241 F.3d at 54.
55
Id. at 54-55.
56
Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.
1995) (stating that “the court must engage in two inquiries:
whether the defendant's conduct was tortious; and whether the
plaintiff's injuries were caused by the deprivation of liberty
guaranteed by the Fourth Amendment”); see also Murphy v. Lynn, 118
F.3d 938, 944 (2d Cir. 1997) (quoting Singer, 63 F.3d at 116, for
the holding that a § 1983 “plaintiff must show conduct that was
tortious under state law and that injury was ‘caused by the
deprivation of liberty guaranteed by the Fourth Amendment’”).
57
Singer, 63 F.3d at 116 n.5.
58
Id. at 116-17.
21
post-arraignment travel restrictions are sufficient to constitute
a seizure.59
The Third Circuit likewise requires proof of all common law
elements, as well as a constitutional violation,60 but not with
certainty. Rather, it has questioned the role of additional common
law elements of malicious prosecution: “For instance, if the harm
alleged is a seizure lacking probable cause, it is unclear why a
plaintiff would have to show that the police acted with malice.”61
However, it has not abandoned this requirement. Like the Second
Circuit, post-arraignment restrictions ($10,000 bond, travel
restrictions, weekly contact with pretrial services, and attendance
at all pretrial hearings) constitute a seizure.62 Unlike most
circuits, the alleged constitutional violation is not limited to a
Fourth Amendment seizure, and includes any constitutional
violation, including violations of procedural due process (but not
59
Murphy, 118 F.3d at 946 (“[W]hile a state has the undoubted
authority ... to restrict a properly accused citizen's
constitutional right to travel outside of the state as a condition
of his pretrial release, and may order him to make periodic court
appearances, such conditions are appropriately viewed as seizures
within the meaning of the Fourth Amendment.”).
60
See Donahue v. Gavin, 280 F.3d 371, 380 n.16 (3d Cir. 2002)
(stating that it had remanded a previous § 1983 case because “the
district court did not rule on whether [the plaintiff] had
satisfied the common law elements of a malicious prosecution
claim”).
61
Gallo v. City of Philadelphia, 161 F.3d 217, 222 n.6 (3d
Cir. 1998).
62
Id. at 222.
22
substantive due process),63 a distinction that will draw our
attention in this case.
The Tenth Circuit is more restrictive, requiring proof of all
common law elements, but limiting the additional constitutional
violation to a violation of “the Fourth Amendment’s right to be
free from unreasonable seizures.”64 The court noted that where an
independent and untainted determination of probable cause is made
at the arraignment, the post-arraignment detention is not a seizure
even if the arrest was illegal.65
In the Ninth Circuit the state tort of malicious prosecution
alone is not sufficient for a § 1983 claim if there is a state
remedy available, but there is an exception if the defendant had
the intent “to deprive a person of equal protection of the law or
otherwise to subject a person to a denial of constitutional
63
See Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 792 (3d
Cir. 2000) (citing Torres v. McLaughlin, 163 F.3d 169 (3d Cir.
1998)).
64
Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)
(stating that “our circuit takes the common law elements of
malicious prosecution as the ‘starting point’ ... but always
reaches the ultimate question ... whether the plaintiff has proven
a constitutional violation”).
65
Id. at 1563-64.
23
rights.”66 The plaintiff must satisfy the state law elements and
the element of purpose to deprive a constitutional right.67
Adopting the second of the two broad approaches, the Fourth
Circuit in Lambert v. Williams held:
[T]here is no such thing as a Ҥ 1983 malicious
prosecution” claim. What we termed a “malicious
prosecution” claim . . . is simply a claim founded on a
Fourth Amendment seizure that incorporates elements of
the analogous common law tort of malicious
prosecution--specifically, the requirement that the prior
proceeding terminate favorably to the plaintiff. It is
not an independent cause of action.68
Interestingly, the Fourth Circuit cites cases from the First,
Second, and Tenth Circuits as taking the same approach it adopted,69
pointing to the subtlety of the difference between the two
approaches. The difference, nonetheless central, is that when the
constitutional violation is the focus, only those common law
elements which are consistent with enforcement of a constitutional
right are incorporated, and those that are not are rejected.
For instance, the Fourth Circuit has rejected the common law
malice requirement, “since the reasonableness of a seizure under
66
Poppell v. City of San Diego, 149 F.3d 951, 961 (9th Cir.
1998) (citing Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th
Cir. 1987)).
67
Id. at 962-63.
68
223 F.3d 257, 262 (4th Cir. 2000) (internal citations
omitted).
69
Id. at 261 (citing Britton v. Maloney, 196 F.3d 24, 28-29
(1st Cir. 1999); Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir. 1997);
Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)).
24
Fourth Amendment jurisprudence should be analyzed from an objective
perspective.”70 On the other hand, that court has incorporated the
requirement of a favorable termination, not only as a prerequisite
to recovery, but also to establish the time of accrual.71 The court
stated that incorporating common law elements was not done to
create a new cause of action, but rather was “in recognition of the
fact that § 1983 was designed to create a ‘special species of tort
liability.’”72 It pointed to several Supreme Court cases where
common law elements were incorporated into § 1983 claims.73
The Seventh Circuit, like the Fourth, does not recognize a
federal claim of malicious prosecution: “[I]f a plaintiff can
establish a violation of the fourth (or any other) amendment there
70
Id. at 262 n.2 (internal quotations marks omitted).
71
Id. at 262 n.3. As mentioned, this court took a similar
approach by adopting only this element in Brummett v. Camble, 946
F.2d 1178, 1183 (5th Cir. 1991), as did the Supreme Court in Heck
v. Humphrey, 512 U.S. 477 (1994).
72
Lambert, 223 F.3d. at 262 (quoting Imbler v. Pachtman, 424
U.S. 409, 417 (1976)).
73
Id. (citing Heck, 512 U.S. at 483-84 (finding a legality of
confinement claim analogous to the malicious prosecution tort, and
incorporating into the federal claim the common law prerequisite of
termination of the prior criminal proceeding in favor of the
accused); Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299,
305-06 (1986) (incorporating common law damages principles into a
§ 1983 claim and finding that the abstract "value" of
constitutional rights cannot form the basis of compensatory
relief); Carey v. Piphus, 435 U.S. 247, 253-67 (1978) (structuring
compensatory damages principles under § 1983 by reference to common
law); Imbler, 424 U.S. at 422-29 (incorporating the common law
principle of prosecutorial immunity)).
25
is nothing but confusion to be gained by calling the legal theory
‘malicious prosecution.’”74 Instead, “[c]laims of malicious
prosecution should be analyzed ... under the language of the
Constitution itself and, if state law withholds a remedy, under the
approach of Parratt,” whereby the adequacy of a state law remedy
bars a due process claim.75 The Seventh Circuit explicitly rejected
its earlier holdings which required the state law elements of the
tort to be satisfied, stating that “whatever scope malicious
prosecution may have as a constitutional tort after Albright, it
does not depend on state law in this way.”76 It had no occasion to
consider which common law tort elements of malicious prosecution it
would incorporate. Finally, it recognized that Newsome had stated
a due process claim “if the prosecutors withheld material
exculpatory details.”77
The Eleventh Circuit takes an approach quite similar to that
of the Fourth Circuit. In Whiting v. Traylor, the court stated
that labeling a § 1983 claim as a malicious prosecution claim
can be a shorthand way of describing a kind of legitimate
section 1983 claim: the kind of claim where the
plaintiff, as part of the commencement of a criminal
proceeding, has been unlawfully and forcibly restrained
74
Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001).
75
Id.
76
Id. at 750.
77
Id. at 752 (citing Brady v. Maryland, 373 U.S. 83 (1963)).
26
in violation of the Fourth Amendment and injuries, due to
that seizure, follow as the prosecution goes ahead.78
The court then concluded that “[i]n determining when a section 1983
claim accrues (as well as the elements which must be pled to state
a claim) we must seek help from the common law tort which is most
analogous to the claim in the case before us.”79 In situations
where the alleged seizure was pursuant to legal process the tort of
malicious prosecution is most analogous, and so the court
incorporated the favorable termination element whereby the claim
does not accrue until the prosecution ends in the plaintiff’s
favor.80 In addition, the court noted that under analogous
malicious prosecution principles, injuries caused by the unlawful
seizure may include those associated with the prosecution.81
III
We now turn to Albright, which, as important as it is, held
far less than is now being claimed. First, we remind that the
charges in Albright were dismissed after petitioner’s arrest and
release on bail. There was no further prosecution. Chief Justice
78
85 F.3d 581, 584 (11th Cir. 1996).
79
Id. at 585 (citing Heck v. Humphrey, 512 U.S. 477 (1994)).
80
Id.; see also Wood v. Kesler, 323 F.3d 872, 881-82 (11th
Cir. 2003) (discussing incorporation of both state and federal
common law tort elements).
81
Id. at 586 & n.10 (noting that there may be causation
problems if an independent prosecutor’s actions broke the causal
link between the defendant officer’s behavior and the plaintiff’s
injury).
27
Rehnquist, in his opinion for the Court, precisely stated the claim
presented:
Petitioner’s claim before this Court is a very limited
one. He claims that the action of respondents infringed
his substantive due process right to be free of
prosecution without probable cause. He does not claim
that Illinois denied him the procedural due process
guaranteed by the Fourteenth Amendment. Nor does he
claim a violation of his Fourth Amendment rights,
notwithstanding the fact that his surrender to the
State’s show of authority constituted a seizure for
purposes of the Fourth Amendment.82
The Court was also precise in what it was holding:
Where a particular Amendment “provides an explicit
textual source of constitutional protection” against a
particular sort of government behavior, “that Amendment,
not the more generalized notion of ‘substantive due
process,’ must be the guide for analyzing these
claims.”83
Albright rejected the contention that the initiation of
criminal proceedings without probable cause is a violation of
substantive due process, holding that petitioner must look to the
explicit text of the Fourth Amendment as a source of protection for
the “particular sort of government behavior” at issue. To the
point, causing charges to be filed without probable cause will not
without more violate the Constitution. So defined, the assertion
of malicious prosecution states no constitutional claim. It is
equally apparent that additional government acts that may attend
82
Albright v. Oliver, 510 U.S. 266, 271 (1994).
83
Id. at 273 (quoting Graham v. Conner, 490 U.S. 386, 395
(1989)).
28
the initiation of a criminal charge could give rise to claims of
constitutional deprivation.
The initiation of criminal charges without probable cause may
set in force events that run afoul of explicit constitutional
protection - the Fourth Amendment if the accused is seized and
arrested, for example, or other constitutionally secured rights if
a case is further pursued. Such claims of lost constitutional
rights are for violation of rights locatable in constitutional
text, and some such claims may be made under 42 U.S.C. § 1983.
Regardless, they are not claims for malicious prosecution and
labeling them as such only invites confusion.
IV
1
One matter should here be put to rest. Under the unique
circumstances of this case, we apply an abuse of discretion
standard, rather than plain error.84 We ask “whether the court's
charge, as a whole, is a correct statement of the law and whether
it clearly instructs jurors as to the principles of the law
applicable to the factual issues confronting them.”85 It is true
that defendants did not object to the jury charge beyond urging
their earlier motions for judgment as a matter of law.86 It is
84
United States v. Daniels, 281 F.3d 168, 183 (5th Cir. 2002).
85
Id. (internal quotations and citations omitted).
86
We iterate our longstanding view that failure to object to
a jury charge ordinarily limits review to plain error. See, e.g.,
29
equally true that defendants did object to allowing the jury to
consider wrongful conviction as a claim under the Fourth or
Fourteenth Amendment, making their legal position clear to the
magistrate judge both by their motions for judgment as a matter of
law, as well as by explicit renewal of those motions at the charge
conference in response to the judge’s invitation to lodge any
objections to the proposed charge. Moreover, defendants appeal
from the district court’s denial of judgment as a matter of law,
and its rejection of the contention that the Fourth Amendment would
not support claims arising from the trial.
2
The magistrate judge in this case, facing the daunting task of
attempting to locate a regression line in our decisions, dismissed
all claims except claims for violation of the Fourth Amendment. In
doing so he read Albright broadly in concluding that the Fourth
Tompkins v. Cyr, 202 F.3d 770, 783 (5th Cir. 2000); Highland Ins.
Co. v. Nat’l Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir.
1994); Farrar v. Cain, 756 F.2d 1148, 1150 (5th Cir. 1985). Rule
51 states that “[n]o party may assign as error the giving or the
failure to give an instruction unless that party objects thereto
before the jury retires to consider its verdict, stating distinctly
the matter objected to and the grounds of the objection.” “The
purpose of this rule is to allow the trial court to correct any
error before the jury begins its deliberation.” Farrar, 756 F.2d
at 1150. Nevertheless, given the unusual procedural history of
this case, that the jury was charged contrary to the law of the
case, and the fact that the nature of the defendants’ continued
objections to submitting the case to the jury went to the heart of
this error, an abuse of discretion standard is appropriate.
30
Amendment afforded an adequate constitutional predicate for all of
the defendants’ conduct through trial – or none of it.
In the effort to rest the entire trial upon the Fourth
Amendment, the trial judge instructed the jury that to prove he was
maliciously prosecuted, Castellano must establish by a
preponderance of the evidence each of the following:
One, the defendants caused or commenced or aided a
criminal proceeding against him; two, the defendants
acted without probable cause; three, the criminal action
terminated in his favor; four, he was innocent of arson;
five, the defendants acted with malice by prosecuting him
for arson; and six, he was damaged by the criminal
proceeding.
The trial court further cabined the claims by instructing that:
A person’s failure to fully and fairly disclose all
material information and knowingly providing false
information to the prosecutor are relevant to the malice
and causation elements of a malicious prosecution claim
but have no bearing on probable cause.
This instruction is a direct quotation from a decision of the
Texas Supreme Court stating the elements of a claim of malicious
prosecution under state law.87 It is a vivid example of the hazards
of blending state tort law with federal law in an undifferentiated
way. The Fourth Amendment of the United States Constitution cannot
be circumscribed by state tort law, yet this is the practical
effect of this instruction, in that if Fragozo were acting under
color of state law in providing the false information, there would
be no probable cause. It neatly excised Castellano’s claim that
87
See Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 519
(Tex. 1997).
31
the falsity of the tapes and testimony furnished by Sanchez and
Fragozo was attributed to the prosecutors because Fragozo acted
under color of state law and hence denied Castellano due process,
just as the Texas Court of Criminal Appeals had concluded in
vacating his conviction.88 Locating the state elements of malicious
prosecution under the Fourth Amendment did not remove the trial
events from the case; at the same time, it fell short of putting
the Fourteenth Amendment back in because it limited the jury’s use
of evidence of fabricated evidence and perjured testimony to its
resolution of the issues of malice and causation. The instruction
also assumed that initiating a criminal case without probable cause
denies a constitutional right, contrary to Albright, and that
defendants’ testimony at trial could supply the causal nexus
between the Fourth Amendment and the claim of wrongful conviction.
As we will explain by the markers of the new path we define
today, this reading of the Fourth and Fourteenth Amendments was
deeply flawed. It swept too wide in two directions: simultaneously
holding that Albright closed the door to any claim of a deprivation
88
Ex parte Castellano, 863 S.W.2d 476, 485 (Tex. Crim. App.
1993) (“Fragozo acted under color of law and was, therefore, a
member of the prosecution team in the investigation of the instant
case and as such his knowledge of the perjured testimony was
imputable to the prosecution.”). Castellano went to trial on his
Third Amended Complaint. There he continued his allegations that
Ed Sargologos, the district attorney who prosecuted the case and
who was earlier dismissed from the case on immunity grounds,
knowingly used the manufactured and perjured testimony and withheld
that fact from the defendant.
32
of due process and that the protections of the Fourth Amendment
extended to events at trial.
The manufacturing of evidence and the state’s use of that
evidence along with perjured testimony to obtain Castellano’s
wrongful conviction indisputably denied him rights secured by the
Due Process Clause. They were not properly dismissed on the basis
that no claim was stated, or upon the confusing assertion that the
Fourteenth Amendment will not support a claim for “malicious
prosecution,” another example of the uncertainty accompanying the
use of the term malicious prosecution without lifting up the
constitutional claims. Defendants pressed the absolute immunity of
witnesses in their motions for summary judgment, but the magistrate
judge did not reach the contention, electing to accept the
erroneous contention that under Albright there could be no denial
of due process if there was an adequate state tort remedy. At the
same time, the magistrate judge determinedly applied holdings of
this court that malicious prosecution had the same elements whether
the claim was asserted under state tort law or § 1983. To assist
in our explanation, we will unpack the ruling of the magistrate
judge, turning first to the dismissal of all claims under the
Fourteenth Amendment.
3
We cannot agree that the claims under the Fourteenth Amendment
were properly dismissed because there was no deprivation of due
33
process that can support a claim for damages under 42 U.S.C. §
1983. This view rests on two arguments. First, that the specific
constitutional rights guiding a criminal trial spend their force in
assuring a fair trial, and, in its most primitive form, that they
cannot support an action under 42 U.S.C. § 1983. Second, that a
state remedy in tort to compensate for the injury is an adequate
post-deprivation response and hence there was no denial by the
state of the process secured by the Fourteenth Amendment.89
4
Turning first to the very role of § 1983 in enforcing
constitutional rights, the Supreme Court has made clear that
Congress created a species of tort liability with § 1983.90 As the
court observed in Cary v. Piphus:
[O]ver the centuries the common law of torts has
developed a set of rules to implement the principle that
a person should be compensated fairly for injuries caused
by the violation of his legal rights. These rules,
defining the elements of damages and the prerequisite for
their recovery, provide the appropriate starting point
for the inquiry under § 1983 as well.91
The substantial body of law developing the immunity to
liability of various players in criminal trials rests on the
implicit acceptance of the draw of § 1983 upon principles of tort
89
See, e.g., Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir.
2001).
90
Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 305
(1986).
91
435 U.S. 247, 257-58 (1978).
34
law to compensate for injury suffered in the loss of constitutional
rights.92 We find no reasoned basis for concluding that § 1983 is
never available to remedy injuries wrought by a denial of due
process. The countervailing interests of law enforcement have been
weighed in the judicial development of the immunity doctrine, not
in somehow sidestepping the congressional command of § 1983.
5
Nor is there a serious suggestion that the Parratt doctrine
is applicable to Castellano’s claim that the manufacturing of
evidence and use of perjured testimony at trial leading to his
wrongful conviction denied him due process.93 Albright, in
forbidding the deployment of substantive due process to police
state actors’ conduct that was governed directly by particular
constitutional provisions, makes no such suggestion.
In his concurring opinion in Albright, Justice Kennedy, joined
by Justice Thomas, made clear that in his view Albright’s due
process claim concerned only the “malicious initiation of a
baseless criminal prosecution,” rather than an unlawful arrest or
events at trial leading to a wrongful conviction, since there was
92
See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976).
93
Before trial defendants even urged that Fourth Amendment
claims should be dismissed because there was an adequate state
remedy.
35
no trial.94 He noted that the Due Process Clause protects interests
“other than the interest in freedom from physical restraint,” and
assumed arguendo that “some of the interests granted historical
protection by the common law of torts (such as the interests in
freedom from defamation and malicious prosecution) are protected by
the Due Process Clause.”95 However, he also noted that even if
malicious initiation of charges was protected by the Due Process
Clause, such a claim would be barred: “[O]ur precedents make clear
that a state actor's random and unauthorized deprivation of that
interest cannot be challenged under 42 U.S.C. § 1983 so long as the
State provides an adequate postdeprivation remedy.”96
That no other justices joined this writing aside, Justice
Kennedy’s opinion carefully distinguished the claim in Albright of
malicious initiation of charges from those cases where the Court
found that a criminal rule or procedure violated the fundamental
principles of due process. He stated that Albright’s claim thus
differs in kind from In re Winship, and the other
criminal cases where we have recognized due process
requirements not specified in the Bill of Rights. The
constitutional requirements we enforced in those cases
ensured fundamental fairness in the determination of
guilt at trial. See, e.g., Mooney v. Holohan, 294 U.S.
103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935) (due
process prohibits “deliberate deception of court and
94
Albright v. Oliver, 510 U.S. 266, 281 (1994) (Kennedy, J.,
concurring).
95
Id. at 283-84.
96
Id. at 284.
36
jury” by prosecution's knowing use of perjured
testimony).97
This qualification makes sense. Unquestionably, the Parratt
principle is important in the effort to find principled limits to
§ 1983's reach into the tort fountain. At the same time, the court
has recognized that its medicine can be too strong. Justice
Kennedy explained its contraindications, observing that
courts, including our own, have been cautious in invoking
the rule of Parratt. That hesitancy is in part a
recognition of the important role federal courts have
assumed in elaborating vital constitutional guarantees
against arbitrary or oppressive state action. We want to
leave an avenue open for recourse where we think the
federal power ought to be vindicated,98
a reservation also expressed in Monroe v. Pape’s reading of § 1983
as supplementary to state remedies for constitutional injury.99
This caution also finds expression in Justice Kennedy’s statement
that a claim of malicious initiation of criminal proceedings
“differs in kind” from claims that implicate “fundamental fairness
in the determination of guilt at trial”100 – claims in which the
federal power ought to be vindicated. The concurring opinion of
Justice Kennedy, joined by Justice Thomas, expresses the view that
Parratt can brake the spinning of new constitutional strictures
97
Id. at 283 (some citations omitted).
98
Id. at 284-85 (citations omitted).
99
365 U.S. 167 (1961).
100
Albright, 510 U.S. at 283.
37
upon the trial of criminal cases from a blend of state tort law and
substantive due process, a principle running through Albright.
At their most fundamental level, the values sought to be
vindicated here are core commands of our United States Constitution
– undiluted and unblurred by any blend of state tort law that would
either enhance or diminish its force. Unlike defamation and
malicious prosecution, this constitutionally secured right of an
accused in a criminal case was not seeded in the common law of tort
where duties are the product of judicial choice with no roots in
the value choices of our organic law.
We need not agree with the Seventh Circuit’s statement that
Justice Kennedy’s concurring opinion is the holding of Albright101
to agree that there are fundamental rights, albeit few in number,
secured by due process that differ in kind from those at issue in
Albright and which are beyond the reach of Parratt. Justice
Stevens made the point as well, observing, “[e]ven if prescribed
procedures are followed meticulously, a criminal prosecution based
on perjured testimony ... simply does not comport with the
requirements of the Due Process Clause.”102 This is no more than
the line drawn by the Parratt line of cases and the handful of
cases decrying conduct so destructive of a fair trial that it
101
See Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001).
102
Albright, 510 U.S. at 300 (Stevens, J., dissenting).
38
cannot be justified by procedures.103 As Chief Justice Rehnquist
put it in Daniels, the Due Process Clause protects against
arbitrary acts of government by promoting fairness in procedure and
“by barring certain government actions regardless of the fairness
of the procedures used to implement them.”104
6
As we have indicated, we find the reasoning employed in
dismissing Castellano’s due process claims flawed. Castellano’s
contention that the manufacturing of evidence and knowing use of
perjured testimony attributable to the state is a violation of due
process is correct.105 Nevertheless, on remand Castellano will face
the well-established rule that prosecutors and witnesses, including
police officers, have absolute immunity for their testimony at
trial.106 Courts have also held that non-testimonial pretrial
actions, such as the fabrication of evidence, are not within the
scope of absolute immunity because they are not part of the
trial.107 Thus, while Castellano’s due process claims are not
103
Zinermon v. Burch, 494 U.S. 113, 125-26 (1990); Daniels v.
Williams, 474 U.S. 327, 331 (1986); Parratt v. Taylor, 451 U.S. 527
(1981).
104
Daniels, 474 U.S. at 331.
105
See Mooney v. Holohan, 294 U.S. 103, 112, (1935).
106
See Buckley v. Fitzsimmons, 509 U.S. 259, 269-70 (1993);
Briscoe v. LaHue, 460 U.S. 325, 334-36 (1983).
107
See Buckley, 509 U.S. at 275-76. Defendants cannot shield
any pretrial investigative work with the aegis of absolute immunity
39
properly rejected by the principles of Albright and Parratt,
whether they survive the absolute immunity given witnesses in a
criminal trial or whether the fabrication of the tapes could have
been a legally sufficient cause of the wrongful conviction, we
leave to the district court on remand.108
7
Castellano attempts to salvage his verdict by contending that
the violation of the Fourth Amendment supports the verdict because
it was the direct cause of all that followed.
In her concurring opinion in Albright, Justice Ginsburg
articulated a theory that gave a broad reach to seizure under the
Fourth Amendment – suggesting that various constraints such as
travel restrictions and required attendance at pretrial hearings
might constitute a seizure and thereby extend the Amendment’s reach
toward trial.109 This view did not attract support in Albright and
we need not here further define its limits. Rather, we adhere to
the view that the umbrella of the Fourth Amendment, broad and
powerful as it is, casts its protection solely over the pretrial
merely because they later offered the fabricated evidence or
testified at trial. Id. at 276; Spurlock v. Satterfield, 167 F.3d
995, 1003-04 (6th Cir. 1999) (finding “untenable” the result that
officials who fabricate evidence could later shield themselves from
liability simply by presenting false testimony regarding the
evidence).
108
See Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000).
109
Albright, 510 U.S. at 277-81.
40
events of a prosecution. This much is implicit in Albright’s
insistence that the source of constitutional protection is the
particular amendment offering an explicit and extended source of
protection against a particular sort of government behavior.110
Plainly, the perjury and manufactured evidence that tainted
Castellano’s arrest also denied him due process when used again at
trial to convict him. It is equally plain that his arrest, even
his indictment, did not lead inevitably to his trial and wrongful
conviction and the damages flowing therefrom. Rather, the
prosecution of this case relied on the continued cooperation of
Sanchez and Fragozo at each of its subsequent phases. As the Texas
Court of Criminal Appeals ultimately held, without their testimony,
there was insufficient evidence to convict. And while Castellano
may recover for all injury suffered by its violation, the Fourth
Amendment will not support his damages arising from events at trial
and his wrongful conviction.
We need not say that there could never be such a case to
conclude it is not this case. Without the perjury at trial there
would have been no conviction, yet the perjury at trial did not
violate the Fourth Amendment. That is, unless these events at
trial are somehow found to be a violation of Castellano’s Fourth
Amendment rights, there is no constitutional footing for a claim
seeking recovery for damages arising from the trial and wrongful
110
Id. at 273.
41
conviction, as opposed to his arrest and pretrial detention, given
the dismissal of all but Fourth Amendment claims.
It is true that the charge refers to a denial of due process
despite the pretrial dismissal of all but the Fourth Amendment, but
as we have explained, this reference to due process is confined by
the jury instruction.
8
We have no occasion here to consider afresh the federal common
law footing of our insistence that a state criminal proceeding
terminate in favor of a federal plaintiff complaining of
constitutional deprivations suffered in a state court prosecution,
a rule reflecting powerful governmental interests in finality of
judgments.111 Nor do we face the kindred exercise in deciding when
such a claim accrues under applicable limitations periods. Justice
Scalia’s opinion in Heck v. Humphrey answers any question of
limitations in the overwhelming percentage of cases, including this
case. It concludes that no such claim accrues until the conviction
has been set aside where, as here, the suit calls the validity of
the conviction into play.112
The heart of Castellano’s claim is that the prosecution
obtained his arrest and conviction by use of manufactured evidence
and perjured testimony, actions attributable to it because Fragozo
111
See supra note 38 and accompanying text.
112
See Heck v. Humphrey, 512 U.S. 477, 484-87 (1994).
42
acted under color of state law. Castellano’s proof directly
implicated the validity of his conviction and therefore he could
not proceed and limitations could not accrue consistent with the
principles of Heck until the case was dismissed for insufficient
evidence by the state trial court on December 29, 1993, on remand
from the Texas Court of Criminal Appeals. This suit followed nine
months later.113 Although the parties sparred in the trial court
over the general applicable period of limitations and the specific
effect of an amended pleading, the parties make no contention here
that the trial court’s holding that the federal claims were not
barred by limitations was in error in either respect.
V
We are persuaded that the judgment must be reversed and the
case should be remanded for a new trial of Castellano’s claims
under the Fourth and Fourteenth Amendments. Defendants are correct
that this verdict cannot stand resting solely on the Fourth
Amendment for the reason that the award of damages does not
distinguish between trial and pretrial events. On remand the
district court will grant leave to amend to all parties to conform
their claims and defenses to this ruling.
It is suggested that Castellano should not be able to pursue
any claims under the Fourteenth Amendment in that the magistrate
113
Heck was decided three months before this suit was filed.
43
judge dismissed them before trial and Castellano filed no cross-
appeal. It is settled that an appellee may urge any ground
available in support of a judgment even if that ground was earlier
and erroneously rejected by the trial court.114 Castellano has
attempted to salvage his verdict, as put at oral argument, on the
basis that, contrary to the ruling of the magistrate judge, he did
state a due process claim and it in practical effect was before the
jury. While we have rejected this contention, it is quite plain
that to make it requires no cross-appeal. Castellano does not
attempt to expand his rights under the judgment by urging that it
can be sustained under the Fourteenth Amendment despite the ruling
of the trial court.
There remains the question of whether Castellano should also
be allowed to plead a state claim of malicious prosecution. The
argument is that Castellano should be allowed to separate his
federal and state claims resting jurisdiction over the state claims
upon 28 U.S.C. § 1367. We are keenly aware that our insistence
upon disentangling federal and state law may appear to be no more
than a message to the bar about pleading – clearly state separately
your state and federal claims. Yet, although jury trials of cases
with both constitutional and supplemental state claims may be
114
See United States v. Hill, 42 F.3d 914, 917 n.8 (5th Cir.
1995); Hoyt R. Matise Co. v. Zurn, 754 F.2d 560, 565 n.5 (5th Cir.
1985); City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1254 n.4
(5th Cir. 1976).
44
little unchanged by our work today, the principle insisted upon
here remains important. Our insistence that the anchor of
constitutional claims be visible is demanded by our limited
jurisdiction, as well as its practical utility in avoiding
confusion and dilution of constitutional values. Here Castellano
amended his complaint, purposely abandoning his claim under state
law. He did so because our case law said the elements of malicious
prosecution under state law and under a § 1983 claim were the same.
We have pulled that legal rug from all the parties. As we have
observed, the magistrate judge’s undifferentiated draw upon state
law misread Albright. But so did this court.
In sum, we reverse the judgment and remand the case for a new
trial of Castellano’s federal and state claims under the Fourth and
Fourteenth Amendments and any state claims he may have. Castellano
has not articulated any theory supporting any other claims of lost
rights secured under the First, Fifth, and Eighth Amendments.
REVERSED AND REMANDED FOR NEW TRIAL.
E. GRADY JOLLY, Circuit Judge, concurring and dissenting:
I join both Judge Higginbotham and Judge Barksdale in
disclaiming the constitutional tort of malicious prosecution. I
join Judge Barksdale and Judge Jones in rejecting a remand on the
state claim. I join Judge Barksdale in rejecting the due process
45
claim. I would remand for retrial on whatever remains of the
Fourth Amendment claims.
46
EDITH H. JONES, Circuit Judge, with whom SMITH, CLEMENT, and PRADO,
Circuit Judges, join, concurring and dissenting:
Like Judge Barksdale, I applaud the court’s decision to
jettison its mischievous and unfounded theory constitutionalizing
the tort of malicious prosecution. This result is overdue. See
Brummett v. Camble, 946 F.2d 1178 (5th Cir. 1991); Kerr v. Lyford,
171 F.3d 330, 342 (5th Cir. 1999) (Jones, J., concurring); Gordy v.
Burns, 294 F.3d 722 (5th Cir. 2002). While I largely agree with
Judge Higginbotham’s discussion of this point, I do not subscribe
to the majority’s broad remand order.
In particular, the majority purports to allow Castellano
to retry state law claims against the two remaining appellants.
This is wrong for two reasons. As Judge Barksdale notes,
Castellano did not appeal from the magistrate judge order
consolidating his state law malicious prosecution claim into a
§ 1983 claim. Moreover, Castellano has clearly disavowed a state
law claim as recently as in his response to the petition for
rehearing en banc. The disavowal turns on quirks of state law
rather than on this court’s constitutional about-face.115 The
115
A judgment or settlement of a Texas Tort Claims Act case
involving a government employer bars the continuation of an action
or judgment against an employee of that department “whose act or
omission gave rise to the claim.” TEXAS CIVIL PRACTICE & REMEDIES CODE
§ 101.106; Thomas v. Oldham, 895 S.W.2d 352, 355-57 (Tex. 1995);
see also Owens v. Medrano, 915 S.W.2d 214 (Tex. App. - Corpus
Christi 1996, writ den’d.) (judgment against City of San Benito on
claims including one for malicious prosecution bars suit against
majority opinion continues a troublesome trend in this court’s
recent en banc decisions of deviating from normal standards of
appellate practice. See, e.g., United States v. Southland Mgmt.
Corp., 326 F.3d 669 (5th Cir. 2003) (en banc) (Jones, J.,
concurring); Coggin v. Longview Indep. Sch. Dist., 337 F.3d 459
(5th Cir. 2003) (en banc) (Jones, J., dissenting). I dissent from
this apparently unnecessary remand.116
On the other hand, I cannot agree with Judge Barksdale’s
argument that Castellano waived any possible constitutional claim
by his trial court pleadings. At every step of the litigation, he
conscientiously attempted to conform to this court’s decisions and
to accomplish the ultimately impossible task of harmonizing our
case law with that of the Supreme Court. Because this court
changed the game technically on Castellano, he should be allowed to
retry his claim as one for violation of procedural due process
based on the appellants’ fabrication of evidence against him.117
Judge Barksdale also powerfully argues that because Texas law
affords Castellano an adequate state remedy in a malicious
its police officers on same claim); Brand v. Savage, 920 S.W.2d
672, 674-75 (Tex. App. - Houston [1st Dist.] 1995).
116
I also dissent from allowing Castellano on remand to try a
Fourth Amendment claim properly limited, in events and damages, to
pretrial events. He never sought such limited relief in the trial
court. Awarding it here is, as Judge Barksdale says, impermissibly
lawyering the case for Castellano.
117
Whether this claim will survive a defense based on the
appellants’ absolute witness immunity has not been briefed and
remains open on remand.
48
prosecution claim, the Parratt doctrine withholds a constitutional
remedy. While this position may prove correct, we have no post-
Parratt guidance on it from the Supreme Court, and several courts
have allowed claims like Castellano’s to proceed without mention of
Parratt. See, e.g., Newsome v. McCabe, 256 F.3d 747 (7th Cir.
2001); Jean v. Collins, 221 F.3d 656 (4th Cir. 2000) (en banc);
Brady v. Dill, 187 F.3d 104, 114 (1st Cir. 1999); McMillian v.
Johnson, 88 F.3d 1554, 1566-70, on reh., 101 F.3d 1363 (11th Cir.
1996); Taylor v. Waters, 81 F.3d 429, 436 n.5 (4th Cir. 1996);
Jones v. City of Chicago, 856 F.2d 985, 984 (7th Cir. 1988); Geter
v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988). For now, I
would side with the other appellate courts and concur in this
portion of the majority’s remand.
49
RHESA HAWKINS BARKSDALE, Circuit Judge, with whom EMILIO M. GARZA,
Circuit Judge, joins, concurring in part and dissenting in part:
As is true of many well meaning, attempted solutions to long-
standing, significant problems, the majority opinion offers good
news and bad. The good is our finally proscribing a claim under 42
U.S.C. § 1983 for malicious prosecution. The bad comes in two
doses: substituted for the freshly minted proscription is an
erroneous new § 1983 claim for a due process violation; and this
action is being remanded for a new, open-ended trial not only on
that new claim but on others as well. This double-barrelled blast
of bad news is compounded by Castellano’s never having requested on
appeal any of the relief provided him so generously, albeit so
erroneously, by the majority sua sponte. In sum, while I concur
fully in the good news, I must respectfully dissent from the bad.
The starting point for the new § 1983 claim’s being erroneous
is the maxim “Ubi jus, ibi remedium” — “Where there is a right,
there is a remedy”. See, e.g., Texas & P. R. Co. v. Rigsby, 241
U.S. 33, 40 (1916). Our federal system counterpoint is: “Where
there is a right, there may not be a federal law remedy”.
Restated, it may be that the remedy must be through state law.
This reflects, among other things, the limited powers granted by
50
our federal constitution, the concomitant limited role of federal
courts, and the proper balance between state and federal law.
Accordingly, it is indeed passing strange that, on the one
hand, the majority properly prohibits pursuing a state law
malicious prosecution claim under § 1983, while, on the other, it
improperly creates, sua sponte no less, a new federal law remedy to
be pursued under § 1983: a witness’ pre-trial evidence fabrication
and perjury at trial equals denial of Fourteenth Amendment due
process. (The majority does not state, however, whether the denial
is “substantive” or “procedural”; as discussed infra, that
distinction is a critical factor.) It is even more strange that
the majority creates this new remedy in the face of the crystal
clear limiting signal in Albright v. Oliver, 510 U.S. 266 (1994)
(holding no claim under § 1983 for malicious prosecution based on
asserted Fourteenth Amendment substantive due process right to no
prosecution without probable cause), especially the concurrence by
Justice Kennedy, id. at 281. No authority need be cited for the
rule that federal courts should avoid constitutional issues if
possible, yet the majority goes out of its way, sua sponte, to
create this new remedy.
On top of all this, the majority remands, sua sponte, for a
new trial on this new remedy and several other issues. In other
words, on appeal, Castellano has not sought any of this relief.
Under our long established rules of appellate procedure, this
51
failure alone precludes the majority’s sua sponte remedy-creation
and remand.
Consistent with my dissent from the vacated panel opinion, I
concur in the holding that malicious prosecution may not be pursued
through § 1983. See Castellano v. Fragozo, 311 F.3d 689, 712 (5th
Cir. 2002) (Barksdale, J., dissenting), vacated by 321 F.3d 1203
(5th Cir. 2003); Kerr v. Lyford, 171 F.3d 330, 342 (5th Cir. 1999)
(Jones, J., concurring). This was the sole reason for en banc
review. Most regrettably, new, unbriefed issues have been used to
diminish, if not swallow, this new holding. Again, the majority
has confected, sua sponte, a new § 1983 due process claim to
replace the now torpedoed § 1983 malicious prosecution claim.
Again, to make matters even worse, it remands, sua sponte, for an
open-ended new trial on this and other issues.
Accordingly, I must respectfully dissent in part. The
majority erred in establishing this new § 1983 claim. And, again,
in order to establish it and to remand for the new trial on it and
other claims, the majority turned its back on long-standing rules
of appellate procedure. There is no justification for creating
this new § 1983 claim and remanding to allow Castellano yet another
round of litigation, despite his repeated failures at trial and on
appeal to raise the very issues the majority now allows him
belatedly to try on remand. We are not a court of original error;
52
yet that is the role played by the majority. It has turned the
trial and appeal process on its head.
I.
At this stage, it is critical to appreciate that only two
defendants remain in this action: Fragozo, a police officer who
was a part-time security guard for Castellano; and Sanchez, who was
employed by Castellano. Fragozo and Sanchez are linked in various
ways, including alleged fabrication of evidence prior to, and
alleged perjury at, Castellano’s criminal trial. Fragozo is the
requisite “state actor” for § 1983 purposes.
The following defendants no longer remain in this action; the
law of the case bars Castellano from bringing any of them back in
on remand. Dismissed were: the County of Bexar, Texas; its
district attorney’s office; its prosecutor; the City of San
Antonio, Texas, for which Fragozo was a police officer; and Alfred
Castro, an arson investigator for that city’s fire department.
Immediately after removal to federal court, the county, the
district attorney’s office, and the prosecutor were dismissed on
the basis of prosecutorial immunity. At trial, each of the then
remaining four defendants moved for judgment as a matter of law,
with that relief being granted the city; and, although the jury
returned a verdict against Fragozo and Sanchez, it did not find
Castro liable. In sum, of the original seven defendants, only two
remain.
53
Castellano did not cross-appeal the dismissal of these five
defendants. Again, the law of the case bars him from bringing any
of them back in on remand. Again, only Fragozo and Sanchez remain.
In conjunction with those two remaining defendants, the majority
opinion contains several errors and omissions related to the
procedural history of this action which demonstrate, in part, why
the new § 1983 claim and remand are improper.
First, Castellano’s third amended complaint presented § 1983
claims under the First, Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendments. According to the majority, all but the
Fourth Amendment claim were dismissed. Maj. Opn. at 8, 31, and 42.
Instead, all but the Fourth and First Amendment claims were
dismissed. Castellano abandoned the latter.
According to the majority, Castellano, by amendment to his
complaint, abandoned his state law malicious prosecution claim.
Maj. Opn. at 2 and 45. Instead, over Castellano’s objection, the
magistrate judge merged that state law claim with Castellano’s §
1983 Fourth Amendment claim.
This case was tried on Castellano’s now proscribed § 1983
malicious prosecution claim; a quite substantial jury verdict
resulted. But, as noted, that verdict was against only two
individuals. When they appealed, Castellano did not cross-appeal
any of his numerous dismissed claims (i.e., § 1983 claims
concerning the Fifth, Sixth, Eighth, and Fourteenth Amendments); or
54
the consolidation of his Fourth Amendment claim with his state law
malicious prosecution claim; or the dismissal of the other
defendants, such as the city. Accordingly, the only issue on
appeal – including before our en banc court – was the jury’s
malicious prosecution verdict against Sanchez (Castellano’s former
employee) and Fragozo (the policeman who had worked for Castellano
as a part time security guard and was linked to Sanchez).
Castellano was successful before the panel. At rehearing en
banc, he provided no new briefing, electing to rely on his panel
brief. As discussed infra, the majority states that, although
Castellano did not cross-appeal, he nevertheless urged, at some
point on appeal, affirmation of the jury’s malicious prosecution
verdict on the separate basis of due process. This is simply not
correct. And, although the majority does not suggest Castellano
urged affirmation on the basis of other constitutional and state
law claims, it nevertheless remands for a new trial with respect to
those claims as well.
II.
The majority remands for a new trial on the following: its
new Fourteenth Amendment due process claim (again, as discussed
infra, it does not distinguish between “substantive” and
“procedural”); a Fourth Amendment claim; a state malicious
prosecution claim; and “any other” claim under state law when, on
55
remand, Castellano amends his complaint for the fourth time. I
would not allow a new trial on any of these.
A.
The new § 1983 due process claim confected by the majority
fails on two bases. First, the issue was never presented on
appeal. Second, it is barred by the Parratt doctrine.
1.
Our prudential appellate rules preclude us from entertaining
a Fourteenth Amendment due process claim of any stripe. This is
especially true because it is a constitutional issue; one we
should, and can properly, avoid. In district court, Castellano
pleaded a procedural due process claim, which was dismissed along
with his Fifth, Sixth, and Eighth Amendment claims. Castellano
prevailed at a jury trial on another basis (malicious prosecution)
against only two of seven defendants.
When those two defendants appealed, Castellano elected not to
raise by cross-appeal (or otherwise) the dismissal of any of these
claims, including his Fourteenth Amendment due process claim
(again, he had abandoned his First Amendment claim). In general,
even without filing a cross-appeal, an appellee can still present
an issue on appeal that does not seek to modify the judgment; in
other words, he must cross-appeal only when he seeks to alter it.
E.g., Kelly v. Foti, 77 F.3d 819, 822 (5th Cir. 1996). But,
obviously, even if a cross-appeal is not required to present an
56
issue, the appellee must still present it on appeal if he wants it
considered. E.g., United States v. Hill, 42 F.3d 914, 917 n.8 (5th
Cir.), cert. denied, 516 U.S. 843 (1995). Castellano did neither.
The majority holds, based upon an extremely thin reed, that
Castellano presented the new Fourteenth Amendment due process
claim, thereby allowing our court to consider it: “Castellano has
attempted to salvage his verdict, as put at oral argument, on the
basis that contrary to the ruling of the magistrate judge he did
state a due process claim and it in practical effect was before the
jury”. Maj. Opn. at 44 (emphasis added). Generally, of course,
our court does not consider issues raised for the first time at
oral argument – most especially at en banc oral argument. E.g.,
Vargas v. Lee, 317 F.3d 498, 503 n.6 (5th Cir. 2003). Although
Castellano did plead a procedural due process claim in district
court, he did not present a due process claim at any point on
appeal — not in his panel brief, not in his en banc brief (which
merely adopted the panel brief), and not even at en banc oral
argument.
This claim may not be considered for three reasons: (1) at en
banc oral argument, Castellano never urged this court to affirm on
due process grounds — procedural or otherwise; (2) in his panel and
en banc briefs, he never urged affirmance on such grounds; and (3)
at issue is a jury verdict for malicious prosecution, to which the
57
cross-appeal exception relied on by the majority, discussed infra,
does not apply.
a.
Even assuming we should consider an issue presented for the
first time at en banc oral argument, I am puzzled by the majority’s
insistence that, at that argument, Castellano urged affirmation on
the basis of due process. Castellano never did so; in fact, on
several instances, he refused to make such a request, even when
repeatedly pointed in that direction by our court.
There were several procedural due process questions asked
Castellano’s counsel by several judges. Most notably, immediately
after a colloquy over whether procedural, instead of substantive,
due process had been left open by Albright (Castellano presumed, as
he has since his first due process claim in district court, that
only procedural due process was available), another judge: (1)
provided a lengthy description of the procedural due process claim
in the context of perjured testimony and an unfair trial; (2)
identified the Brady v. Maryland, 373 U.S. 83 (1963), line of
cases; and (3) asked Castellano’s counsel what sort of argument he
would make under this legal theory in support of the judgment. To
his credit, because he had never presented the issue, Castellano’s
counsel responded: “Your honor, I’m not sure I can answer that
question today, but I would certainly welcome the opportunity to
brief the issue fully if the court would so request”. Castellano
58
did not then urge, just as he had not previously urged, our court
to affirm on the basis of a due process violation. This was
confirmed by the fact that he was not prepared to discuss the point
and did not attempt to wing it at en banc oral argument.
b.
Nowhere in his panel or en banc briefs does Castellano request
this court to affirm on the basis of a § 1983 due process claim.
One issue raised by defendants’ appeal was the claimed reversible
error caused by the quite erroneous inclusion of the term “due
process” in the malicious prosecution jury instruction. But
Castellano never contended on appeal that the inclusion of this
term was a correct statement of the law or that our court should
affirm on due process grounds.
In fact, Castellano took the opposite position. In claiming
in his panel brief that there was no error in the instructions –
certainly not reversible error – Castellano was saying that the
erroneous inclusion of the term “due process” in the instruction
did not affect the trial’s outcome. He was not asserting that our
court should affirm the judgment because procedural due process so
requires, or even that the jury reached its verdict on that basis.
To the contrary, he was maintaining that we should affirm in spite
of the erroneous inclusion of the words “due process” in the
instruction. Neither of Castellano’s briefs (panel or en banc)
59
includes a contention that this court should affirm because his due
process rights were violated.
c.
Even if Castellano had urged affirmation based on due process
grounds, he would have had to cross-appeal in order to do so; the
exception to the cross-appeal rule simply does not apply in this
instance. The majority states: “It is settled that an appellee
may urge any ground available in support of a judgment even if that
ground was earlier and erroneously rejected by the trial court”.
Maj. Opn. at 44 (emphasis added; citing Hill, 42 F.3d at 917 n.8;
Hoyt R. Matise Co. v. Zurn, 754 F.2d 560, 565 n.5 (5th Cir. 1985);
City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1254 n.4 (5th
Cir. 1976)). For some instances (not so here), this is a correct
statement of the rule. Here, however, the majority mistakenly
stretches this rule far beyond its intended scope. Again, our
court is not affirming a judgment; instead, we are vacating a
judgment premised on a jury’s verdict based on a malicious
prosecution, not a due process, claim. Again, the exception to the
cross-appeal rule only applies where the appellee urges affirmation
on the basis of a claim rejected by the district court; Castellano
did not do so. He was quite satisfied with, and clung tenaciously
to, his judgment based on malicious prosecution.
An examination of the cases relied upon by the majority
demonstrates the exception’s proper application. In Hill, on
60
defendant’s appeal from the sentence imposed following his guilty
plea, we allowed the Government to urge affirmation on the basis of
a statute that had been rejected by the “district court’s ruling”.
The judgment was affirmed. 42 F.3d at 917 n.8. In Zurn, the
appellee maintained that the record provided an alternative ground
to support the district court’s bench trial decision. Our court
held an appellee may take the position on appeal, without filing a
cross-appeal, that the record supports “the court’s judgment”. 754
F.2d at 565 n.5. Likewise, our court held in Birchfield that the
district court’s statement, upon dismissing the complaint on two
grounds, to the effect that defendant’s other contentions were
inappropriate for determination on a motion to dismiss, did not
require a cross-appeal in order to assert those other contentions
on appeal. 529 F.2d at 1254 n.4. None of these cases involves a
jury verdict.
To contend that a trial judge’s ruling on an issue was
erroneous and that we should therefore affirm, without a cross-
appeal, on that basis may, in some instances (not so here) be
correct. That is not the situation at hand. Castellano has failed
to follow any of our appellate rules with respect to the due
process claim he presented only in district court; we are not
permitted to consider it.
61
2.
Assuming arguendo that, on appeal, Castellano did properly
present a due process claim, it is barred by the Parratt doctrine.
Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by
Daniels v. Williams, 474 U.S. 327 (1986), held: where state law
provides an adequate post-deprivation remedy, the plaintiff is
barred from claiming, through § 1983, a procedural due process
violation. This prohibition, however, does not extend to claimed
violations of recognized substantive rights incorporated in the
Fourteenth Amendment. E.g., Augustine v. Doe, 740 F.2d 322 (5th
Cir. 1984) (holding Parratt inapplicable to claimed violation of
recognized Fourth Amendment substantive right, but remanding
another claim to determine whether state actors’ conduct was
“official policy”, or instead “random and unauthorized” and
therefore a procedural due process violation — a claim barred by
Parratt). For this reason, understanding the distinction between
procedural and substantive due process, and determining which claim
Castellano pleaded in district court, is most essential.
Unfortunately, the majority brushes this aside in its relentless
effort to provide Castellano a remedy – any remedy – on remand.
Along this line, it is again imperative to recognize the
defendants who are, and are no longer, in this action. The county,
the district attorney’s office, the prosecutor, the city, and its
arson investigator are out; only Fragozo and Sanchez remain. In
62
short, Fragozo is the only “state actor” and an extremely tenuous
one at that.
As discussed below, in district court, Castellano pleaded a
procedural due process violation. Indeed, the Supreme Court has
only characterized the type of conduct Castellano alleges –
fabricated evidence and perjured testimony – as violative of
procedural, not substantive, due process. Carving out a new,
stand-alone substantive right under the Fourteenth Amendment, one
that was not pleaded by Castellano in district court and has never
been articulated by the Supreme Court, is not warranted, to say the
least. This is especially true where the alleged conduct by the
state actor (Fragozo, the police officer and part time security
guard for Castellano) is of the “random and unauthorized” type
pinpointed by Parratt as being violative of procedural due process.
Parratt, 451 U.S. at 541.
In district court, Castellano pleaded a procedural, not
substantive, due process violation. In his third amended
complaint, he claimed that he was deprived of his right to due
process and a fair trial because the defendant witnesses allegedly
fabricated evidence and gave perjured testimony. Defendants were
of the view that, post-Albright, a § 1983 claim for substantive due
process was prohibited. Therefore, they contended in their summary
judgment motions that Castellano had pleaded a proscribed
substantive due process claim that should be dismissed.
63
In response, Castellano seized every opportunity to clarify
his position, denying that his claim was for a violation of
substantive due process; in one instance, he called defendants’
characterization “disingenuous”. Instead, Castellano carefully
explained that, because Albright apparently did not allow a stand-
alone substantive due process claim, he was not asserting one.
Whether this interpretation of Albright is accurate is
irrelevant. For the purpose of deciding what claims Castellano
presented in district court, we need look no further than to his
own interpretation. The only substantive constitutional violations
Castellano claimed were under the First, Fourth, Fifth, Sixth, and
Eighth Amendments, made applicable through the Fourteenth
Amendment. And, for a separate Fourteenth Amendment claim, he
asserted violation of his right to procedural due process and was
deliberate in explaining to the magistrate judge that he was not
claiming a violation of substantive due process.
Pursuant to Parratt, the existence of an available independent
and adequate state remedy precludes Castellano’s procedural due
process claim. The only exception is when the plaintiff “pleads
and proves” that available state remedies are inadequate to redress
the wrong. E.g., Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.
1995). Castellano did not do so; on the contrary, he pushed for
relief through an independent state malicious prosecution claim,
64
apparently appreciating its “adequacy” enough to object when the
magistrate judge consolidated it with his Fourth Amendment claim.
Castellano’s pleadings aside, and as noted, the Supreme Court
has only characterized conduct of the type alleged by Castellano as
a violation of procedural due process. The majority correctly
cites Mooney v. Holohan, 294 U.S. 103 (1935), for the proposition
that fabricated evidence and perjured testimony are violative of
due process. Maj. Opn. at 39. But as Chief Justice Rehnquist
explained in the Albright plurality opinion, such activities are
properly understood, under the Mooney, Brady line of cases, to
implicate procedural, not substantive, due process:
Winship [397 U.S. 358 (1970)] undoubtedly
rejected the notion that all of the required
incidents of a fundamentally fair trial were
to be found in the provisions of the Bill of
Rights; but it did so as a matter of
procedural due process: “This notion [that
the government must prove the elements of a
criminal case beyond a reasonable doubt] –
basic in our law and rightly one of the boasts
of a free society – is a requirement and a
safeguard of due process of law in the
historic, procedural content of ‘due
process.’” Similarly, other cases relied on
by the dissent, including Mooney ... [and]
Brady ... were accurately described in [United
States v. Agurs, 427 U.S. 97 (1976)] as
“dealing with the defendant’s right to a fair
trial mandated by the Due Process Clause of
the Fifth Amendment to the Constitution.”
Albright, 510 U.S. at 273 n.6 (citations omitted; emphasis added).
In fact, the conduct described in some of these cases,
prosecutorial — not witness — fabrication of evidence and its
65
knowing use of perjured testimony, for example, is much more
fundamental to the fairness of a trial than, as with Fragozo and
Sanchez, a witness’ independent fabrication of evidence and perjury
— conduct not linked to the prosecutor’s conduct. Nevertheless,
the Supreme Court characterized such prosecutorial conduct as
procedural. Indeed, this is why, for deciding whether there is a
procedural due process violation, Parratt and its progeny consider
whether conduct was “random and unauthorized” (invoking procedural
due process), or instead part of an established state procedure
that is fundamentally flawed. See Parratt, 451 U.S. at 543; see
also Copeland, 57 F.3d at 479. Here, the former, not the latter,
factor is in play concerning the two remaining defendants.
This procedural/substantive distinction is indispensable to §
1983 analysis because, as discussed, Parratt precludes § 1983
claims predicated on procedural due process where there is an
adequate state remedy, but does not preclude such claims predicated
on the violation of substantive rights that have been incorporated
into the Fourteenth Amendment. But even if we assume arguendo
that, in district court, Castellano did claim a violation of
substantive due process (an assumption quite forcefully rejected by
Castellano), it is not at all clear that a witness’ fabricating
evidence and commiting perjury at trial is a sufficient basis for
a substantive due process violation.
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As noted, courts have permitted § 1983 recovery for recognized
substantive violations, despite the availability of state law
remedies. See, e.g., O’Quinn v. Manuel, 773 F.2d 605, 608 (5th
Cir. 1985) (concluding the Parratt doctrine, while barring § 1983
claim for procedural due process, does not bar one for claimed
violation of the “substantive eighth amendment right to be free
from cruel and unusual punishment”) (emphasis added); Augustine,
740 F.2d at 327 (holding Parratt doctrine does not bar § 1983 claim
for violation of the “substantive [Fourth Amendment] right
protected by the Constitution against infringement by state
governments”). But I find no cases, and the majority cites none,
where a court has recognized a substantive due process violation
for a witness’ evidence fabrication and perjury. And some circuits
have interpreted Albright as precluding all § 1983 claims that are
predicated on a no more specific constitutional violation than
substantive notions of due process of law (but as allowing
procedural due process or articulated constitutional provisions
such as the Fourth Amendment). See, e.g., Merkle v. Upper Dublin
School Dist., 211 F.3d 782, 791 (3d Cir. 2000).
In an apparent effort to side step the Parratt bar, the
majority refers in its opinion only to “due process” (due process
simpliciter?). See, e.g., Maj. Opn. at 2-3, 35, and 38. But, to
truly escape Parratt, the majority must mean substantive due
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process. The Parratt doctrine precludes simply blending procedural
and substantive due process; instead, it requires identifying the
precise nature of the claimed constitutional violation.
The conduct about which Castellano complained in district
court constitutes a procedural due process violation for which
state law provides an adequate post-deprivation remedy. Remember,
Castellano is not seeking a new criminal trial because his trial
was fundamentally unfair. The state courts provided habeas relief,
and the State did not re-prosecute. Instead, Castellano is seeking
damages for alleged wrongs – now only by Sanchez and Fragozo – that
occurred before and during his criminal trial. In such instances,
the state post-deprivation remedies are the “best the state can do”
to allow injured individuals recovery after injury has occurred.
Augustine, 740 F.2d at 327. Such state remedies are sufficient to
address due process violations that are “random and unauthorized”
and therefore violate procedural due process. Id.
The majority is attempting to treat conduct the Supreme Court
has already characterized as potentially violative of procedural
due process as though it is also violative of a recognized
substantive constitutional right (as with O’Quinn and the Eighth
Amendment or Augustine and the Fourth). In so doing, it apparently
hopes that Castellano’s § 1983 claim will escape the effect of
Parratt and somehow become “supplementary to [rather than
precluded by] state remedies for constitutional injury”. Maj. Opn.
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at 37. In support, the majority cites Monroe v. Pape, 365 U.S. 167
(1961). Id. But that case, involving police officers breaking
into and ransacking a home, concerned the recognized substantive
Fourth Amendment right made applicable by the due process clause of
the Fourteenth Amendment. The majority attempts to slip past the
Parratt bar on this same ground. Effectively, the majority can
only be considering Castellano’s claim as some sort of substantive
due process claim, but has avoided the damning label.
The alleged conduct by Sanchez and Fragozo is precisely the
type of “random” and “unpredictable” activity that Parratt
expressly prohibits being remedied through a claim under § 1983 –
this conduct relates to procedural due process and there are
adequate state remedies. Again, Parratt distinguishes between the
“random and unauthorized (and hence unpredictable) conduct of a
state actor” (such as is at issue here) and “conduct that the state
can contain and direct by instituting procedural safeguards”.
Augustine, 740 F.2d at 327. The availability of a post-deprivation
state tort remedy does satisfy due process in the former instance,
but not in the latter. Id. Again, the conduct at issue here —
alleged witness fabrication of evidence and perjury — is precisely
the sort of “random and unauthorized” conduct to which Parratt
applies; therefore, the existence of adequate post-deprivation
state remedies, such as through a malicious prosecution claim, bars
a § 1983 procedural due process claim.
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Relying almost exclusively on Justice Kennedy’s Albright
concurrence, the majority concludes that “the Parratt doctrine is
[not] applicable to Castellano’s claim that the manufacturing of
evidence and use of perjured testimony at trial ... denied him due
process”. Maj. Opn. at 35. The majority first claims that Justice
Kennedy warned of the contra-indications of Parratt, noting that in
some instances federal power ought to be vindicated, rather than
rely on state law remedies. This is true; but that is only part of
the equation. The majority then refers, by way of example, to
Monroe’s “reading of § 1983 as supplementary to state remedies for
constitutional injury”. Maj. Opn. at 37. Returning to Justice
Kennedy, the majority states that this notion — of § 1983 claims
supplementing state remedies — “finds expression in Justice
Kennedy’s statement that a claim of malicious initiation of
criminal proceedings ‘differs in kind’ from claims that implicate
‘fundamental fairness in the determination of guilt at trial’”.
Maj. Opn. at 37-38. The majority then determines that this latter
type of claim is one “in which the federal power ought to be
vindicated” and is therefore not barred by Parratt. Id.
As a preliminary matter, Justice Kennedy made a factual
distinction between malicious initiation of charges and conduct
that occurs during a trial; this was only a factual, chronological
distinction. The majority’s conclusion is that the distinction
Justice Kennedy made between the conduct in Albright’s case and in
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other cases is actually a significant legal decision, identifying
the conduct in those other cases as “beyond the reach of Parratt”.
Maj. Opn. at 38. Justice Kennedy never made such a conclusion. As
noted, Chief Justice Rehnquist, writing for the plurality,
characterized these as violations of procedural due process;
Justice Kennedy did not challenge that.
That Justice Kennedy walked Albright’s conduct through the
Parratt analysis, but did not do so for other types of conduct
(like that at issue here), in no way implies that Parratt does not
apply to the latter. Albright did not involve witness evidence
fabrication and perjury; accordingly, Justice Kennedy did not
address it. But, by walking the conduct at issue here through the
steps Justice Kennedy applied in Albright, it is clear that
Parratt’s proscriptions are a perfect fit.
Even assuming, arguendo, that Justice Kennedy’s factual
distinction is meant to imply that there are substantive due
process rights in the fundamental fairness of a trial, he does not
identify conduct sufficient to invoke them beyond a prosecutor’s
knowing use of perjury (Mooney) and the requirement of proving
elements of a criminal conviction beyond a reasonable doubt
(Winship). It is the majority that holds that a witness’ evidence
fabrication and perjury are sufficient to invoke it.
But again, a due process claim can bypass Parratt in only two
ways: (1) the claim is substantive; or (2) it is procedural, but
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available state remedies are inadequate. There is no dispute that
Castellano has neither pleaded nor proved the inadequacy of state
remedies. Apparently this is why the majority finds it necessary
to provide cover for the only possible claim – substantive due
process. But, because Castellano argued to the magistrate judge
against construing his claim as substantive, the majority labels it,
simply, “due process”.
To support bypassing Parratt, the majority points to Justice
Kennedy’s statements that courts have “been cautious in invoking the
rule of Parratt” and that “[w]e want to leave an avenue open for
recourse where we think the federal power ought to be vindicated”.
Maj. Opn. at 37 (quoting Albright, 510 U.S. at 284-85 (Kennedy, J.,
concurring)). Again, the majority opines that one avenue for
vindication is where a witness fabricates evidence or commits
perjury; but, again, Justice Kennedy never says that. Again, the
majority cites language from earlier in Justice Kennedy’s
concurrence, where he made a factual distinction, without
elaboration, on the difference between the type of conduct in
Albright and that in other cases. See Albright, 510 U.S. at 283
(Kennedy, J., concurring). Of particular importance to this action,
Justice Kennedy then cautioned, however:
But the price of our ambivalence over the outer
limits of Parratt has been its dilution.... The
Parratt rule has been avoided by attaching a substantive
rather than procedural label to due process claims
(a distinction that if accepted in this context
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would render Parratt a dead letter) and by
treating claims based on the Due Process Clause
as claims based on some other constitutional
provision.
Albright, 510 U.S. at 285 (Kennedy, J., concurring). (Of course,
this is precisely what the majority is doing — trying to
characterize the two remaining defendants’ conduct as violative of
something other than procedural due process, so that the new claim
can slip past Parratt.) To stem this “dilution”, Justice Kennedy
offers this compelling guidance:
These evasions are unjustified given the
clarity of the Parratt rule: In the ordinary
case where an injury has been caused not by a
state law, policy, or procedure, but by a
random and unauthorized act that can be
remedied by state law, there is no basis for
intervention under § 1983, at least in a suit
based on “the Due Process Clause of the
Fourteenth Amendment simpliciter”.
Id. (emphasis added). There can be no more accurate description of
Castellano’s due process claim in district court. (Again, he does
not present such a claim on appeal.)
As a final note, the very reason why, in state court,
Castellano added federal law claims must not be overlooked. He did
so through amended complaints in an apparent effort to avoid state
law immunity. Justice Kennedy warned: “The commonsense teaching
of Parratt is that some questions of property, contract, and tort
law are best resolved by state legal systems without resort to the
federal courts”. Albright, 510 U.S. at 284 (Kennedy, J.,
73
concurring). He later notes that “[t]he Parratt principle respects
the delicate balance between state and federal courts and comports
with the design of § 1983....” Id. Parratt makes very clear:
“Although the state remedies may not provide the respondent with all
the relief which may have been available if he could have proceeded
under § 1983, that does not mean that the state remedies are not
adequate to satisfy the requirements of due process”. Parratt, 451
U.S. at 544. In Parratt, there was “no contention that the
procedures themselves [were] inadequate”. Id. at 543. Nor is there
one here.
B.
In his third amended complaint, Castellano added a Fourth
Amendment claim. As noted, the magistrate judge consolidated it
with Castellano’s original state law malicious prosecution claim.
Although Castellano objected to this rejection of the state law
malicious prosecution claim as a separate, stand-alone claim, he
never objected to the transformation of the Fourth Amendment claim
into a § 1983 malicious prosecution claim. And, as with his
procedural due process claim, he did not present the issue on
appeal.
We should not remand for a new trial on a Fourth Amendment
claim. At trial and on appeal, despite Albright, Castellano
repeatedly turned his back on the one claim he had under federal law
– the Fourth Amendment. He was denied trial on a Fourth Amendment
74
claim and a supplemental state malicious prosecution claim; but, he
elected not to contest that denial on appeal.
Litigation must come to an end; fairness must be shown both
sides. In my view, it is quite unfair to defendants, especially in
the light of what repeatedly took place at trial concerning the
Fourth Amendment claim, to afford Castellano yet another opportunity
to try such a claim.
C.
As noted, Castellano originally pleaded a state malicious
prosecution claim. As also noted, the majority incorrectly states
he “amended his complaint, purposely abandoning [this] claim under
state law”. Maj. Opn. at 45. In his original state court
complaint, Castellano presented only a malicious prosecution claim.
Following his addition of § 1983 claims (apparently to avoid state
law immunity) and the subsequent removal of the action to federal
court, the magistrate judge ruled that Castellano’s action was based
entirely on malicious prosecution in the context of a claim brought
pursuant to § 1983. Castellano’s motion for reconsideration was
denied.
The magistrate judge erred in placing the state law claim under
§ 1983; Castellano identified the error and objected. But, as
noted, he never presented the issue on appeal. Instead, he
contended in our court that the judgment was correct (and, by
extension, that the consolidation ruling upon which the verdict is
75
based should stand). Significantly, the majority never suggests
Castellano presented this issue on appeal. Nevertheless, it remands
for a new trial to include a malicious prosecution claim.
The majority states that Castellano “purposely abandoned” his
state law malicious prosecution claim “because our case law said the
elements of malicious prosecution under state law and under a § 1983
claim were the same”. Maj. Opn. at 45. As noted, this is
inaccurate; the magistrate judge, not Castellano, merged the claims.
Presumably, the majority, out of sympathy for Castellano, would
still give him the benefit of this change in our precedent,
considering it unfair for Castellano to be burdened by our earlier
erroneous precedent.
But Castellano was not so burdened. He made a specific
objection by motion to the consolidation (which was denied).
Thereafter, as noted, he did not present the issue on appeal — even
though he had every reason to do so. He was quite aware of both
Albright and Judge Jones’ extremely compelling concurrence in Kerr,
and had access to the law with respect to this issue in other
circuits. Every factor on which our court now relies in changing
the law concerning § 1983 malicious prosecution was either expressly
or constructively before Castellano in district court. Indeed, he
considered the magistrate judge’s ruling on this issue erroneous.
It was his option, therefore, to present this contention on appeal.
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He elected not to do so. We cannot now pretend that he did. Nor
can we allow him to pursue this claim on remand.
D.
As a final act of lawyering this action for Castellano, the
majority also allows him to plead “any [other] state claims he may
have” on remand. Maj. Opn. at 45. This action has become open-
ended. In essence, the majority is starting it anew. Instead, it
should be at an end.
III.
Sympathy for a litigant does not permit us to entertain claims
not presented on appeal — most especially, those of constitutional
dimension. It most certainly does not allow us to create, sua
sponte, a new remedy for that litigant and an erroneous remedy at
that. At Castellano’s election, only the now-proscribed § 1983
malicious prosecution claim was at issue before our court; the
following claims were not: (1) Fourteenth Amendment due process;
(2) Fourth Amendment; (3) state malicious prosecution; and (4) any
other state claim Castellano can dream up on remand. In addition
to the new § 1983 due process claim’s being violative of Parratt,
any relief the majority accords Castellano on these issues greatly
exceeds the scope of this appeal and is violative of long
established appellate rules to which we require parties to adhere
— day in and day out — at their prejudice.
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Accordingly, although I fully concur in our finally proscribing
a claim under § 1983 for malicious prosecution, I must respectfully
dissent from both the creation of the new § 1983 due process remedy
and the remand of this action for yet another round of litigation.
Instead, I would vacate and render for appellants. This is not an
unfair result — far from it. It is the result for which Castellano,
by his election on appeal, rolled the dice ... and lost.
78