Whiting v. Traylor

United States Court of Appeals,

Eleventh Circuit.

No. 95-4268.

Glenn WHITING, Plaintiff-Appellant,

v.

Ed TRAYLOR; R.H. Hamilton, Defendants-Appellees.

June 19, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No.94-14015 CIV-KLR), Kenneth L. Ryskamp,
Judge.

Before EDMONDSON and BIRCH, Circuit Judges, and FOREMAN*, Senior
District Judge.

EDMONDSON, Circuit Judge:

Glenn Whiting appeals the Rule 12(b)(6) dismissal of his

section 1983 claim against two Florida Marine Patrol Officers. He

also appeals dismissal of a pendant state law tort claim. We

vacate the dismissals and remand for further proceedings.

I.

In August 1988, Glenn Whiting—while he was operating his boat

on a Florida lake—was stopped by two Florida Marine Patrol

officers. The officers approached Whiting because they were unable

to see registration decals on Whiting's boat. Whiting told the

officers (defendants Ed Traylor and R.H. Hamilton) that he owned

the boat and that he did not believe he was required to display

registration numbers or a registration certificate. Whiting

answered some of the questions asked of him by the officers, but he

refused to tell the officers his name. For failing to display

*
Honorable James L. Foreman, Senior U.S. District Judge for
the Southern District of Illinois, sitting by designation.
registration numbers, the officers seized Whiting's boat and told

him he could have it back if he came to the Marine Patrol offices

and proved he owned it.

Two months later, Traylor obtained an arrest warrant for

Whiting on a charge of obstructing officers without violence. This

charge was based on Whiting's failure to identify himself when he

was stopped on the lake.1 Whiting voluntarily turned himself in

during November 1988 after learning of the warrant. He was

detained overnight and then released on bond; later, he was

formally charged with Resisting an Officer Without Violence. In

February 1989, he appeared for arraignment and pleaded not guilty.

As he left the courtroom, he was again arrested by Traylor. This

time, he was issued citations for various offenses related to the

registration decal on his boat. During this arrest, Traylor

allegedly abused Whiting and declined to inform Whiting of the

charges against him.2

The state's attorney brought misdemeanor charges based on the

registration decal allegations. Whiting asserts that Traylor made

false written statements on a citation and on an arrest affidavit.

And, Whiting alleges Hamilton backdated documents for use in the

prosecution. Whiting also says Traylor falsely alleged to his

superiors that he was involved in criminal conspiracy, that

Hamilton and Traylor caused public records to be falsified, that

1
Traylor later explained that this charge was brought so
that Whiting could be held until more serious charges could be
developed.
2
An internal investigation by the Marine Patrol concluded
that Traylor used excessive force during this arrest and
otherwise failed to follow proper procedures.
Hamilton backdated documents which formed the basis of the criminal

prosecution and that Traylor and Hamilton kept or caused to be

damaged or destroyed personal property seized from Whiting in

August 1988. In the criminal proceedings, Whiting had to appear in

court 20 times.

In May 1990 the state's attorney nol prossed some of the

charges. Others were pursued by the state until a Florida state

judge dismissed them. In the order of dismissal, the state judge

found that Defendants and the prosecuting attorney had harassed

Whiting either through gross incompetence or by intention. Whiting

brought this action under 42 U.S.C. § 1983, alleging a prosecution

without probable cause in violation of his Fourth Amendment rights.

He also had pendant a state law malicious prosecution claim. The

district court concluded that any Fourth Amendment claims based on

Whiting's surrender or arrest were time barred. And, he concluded

Whiting alleged no constitutional violation which occurred after

these dates.

II.

Section 1983 is no source of substantive federal rights.

Albright v. Oliver, 510 U.S. 266, ----, 114 S.Ct. 807, 811, 127

L.Ed.2d 114 (1994) (plurality opinion) (citing Baker v. McCollan,

443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433

(1979)). Instead, to state a section 1983 claim, a plaintiff must

point to a violation of a specific federal right. Id. (again

citing Baker ). Whiting has done so here; he says the Defendants

violated his Fourth Amendment rights (which the Supreme Court says

protects, through the Fourteenth Amendment, persons from state
action). The Fourth Amendment prohibits "unreasonable ...

seizures" and also says that "no Warrants shall issue, but upon

probable cause."

Whiting, however is not claiming just that he was seized

unlawfully or that a warrant was issued without probable cause: he

says he was "maliciously prosecuted" in violation of his Fourth

Amendment rights. Defendants respond that no independent Fourth

Amendment right exists to be free from a malicious prosecution. 3

Because the Fourth Amendment protects against "searches" and

"seizures" (and not "prosecutions") Defendants' statement of the

law about prosecutions is persuasive.

But, this proposition does not end our inquiry. Labeling—as

Whiting did here—a section 1983 claim as one for a "malicious

prosecution" 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 in violation of the

Fourth Amendment and injuries, due to that seizure, follow as the

3
In Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127
L.Ed.2d 114 (1994), the Supreme Court—in a plurality opinion—held
that no "substantive" due process right exists to be free from a
malicious prosecution. But, the court left open the question of
whether such a claim could be based on the Fourth Amendment or
the due process clause's procedural component.

Whiting does not allege a procedural due process
section 1983 claim. For a case holding that there is no
violation of procedural due process in a malicious
prosecution where the state recognizes the tort of malicious
prosecution, see Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40,
43 (1st Cir.1994).
prosecution goes ahead.4 So, Whiting can avoid an order of

dismissal if he based his claim—whatever he calls it—on some actual

unlawful, forcible, restraint of his person.

Whiting's allegations point to three possibly unlawful

seizures: his surrender following the issuance of the arrest

warrant, his arrest as he left the courtroom, and his being

required to appear to answer the charges after being released on

bond. If these alleged acts are seizures and are unlawful,

4
This court has, at times, referred to a "federally
guaranteed right to be free of malicious prosecution." Strength
v. Hubert, 854 F.2d 421, 426 (11th Cir.1988); see also NAACP v.
Hunt, 891 F.2d 1555, 1563 (11th Cir.1990) (dictum). But, we have
never defined with specificity the constitutional source of this
"right." The Albright opinions remind us that a plaintiff must
point to a constitutional (or statutory) basis for his claim.
See Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir.1996)
(section 1983 malicious prosecution plaintiff must prove a
constitutional violation). To the extent Strength relied on a
"substantive" due process theory it has been overruled by
Albright, and the extent to which Strength is based directly on a
Fourth Amendment violation is unclear.

Support for the concept that an independent, classic
Fourth Amendment violation is critical to a section 1983
claim called malicious prosecution, but based on the Fourth
Amendment, is found in Kelly v. Curtis, 21 F.3d 1544, 1555
(11th Cir.1994). In Kelly, to present a section 1983 claim
termed "malicious prosecution," the plaintiff alleged and
proved a Fourth Amendment violation: arrest, in fact,
followed by an unlawful warrant application and physical
restraint. The plaintiff sought damages which included the
prosecution following the arrest. Given the circumstances,
we called the claim one for "malicious prosecution." Id. at
1553; see also Barts v. Joyner, 865 F.2d 1187 (11th
Cir.1989) (requiring unconstitutional seizure—as well as
proof of causation—to obtain damages relating to
prosecution). Whiting also recognized the rule of Albright
in basing his complaint here on a Fourth Amendment seizure
theory.

Given Albright and Kelly and—in particular—the language
of the Fourth Amendment, we think referring to a federal
"right" to be free from malicious prosecution is actually a
description of the right to be free from an unlawful seizure
which is part of a prosecution.
they—whether or not there is a federal "right" (even in the absence

of some moment of physical restraint) not to be prosecuted in state

court without probable cause—are the proper basis for a section

1983 claim.

Because Whiting relies chiefly on what has been called a

"continuing seizure" theory, we will discuss this claim a little.

Under this theory—which is explained most completely in Justice

Ginsburg's concurring opinion in Albright—Whiting would have

alleged a Fourth Amendment "seizure" because he alleged that, after

his arrest, he was released on bond and obliged to appear to answer

the charges against him. See Albright, 510 U.S. at ---- - ----,

114 S.Ct. at 814-17 (Ginsburg, J., concurring). But, Justice

Ginsburg's opinion was not joined by other justices. And, the

Seventh Circuit has recently (post- Albright ) reaffirmed its

rejection of the theory. See Reed v. City of Chicago, 77 F.3d

1049, 1052 n. 3 (7th Cir.1996). We also have questions about the

theory, but we do not need to reach a final decision about it

today.

Whiting also points us to two other possible seizures—his

arrest and his surrender after he learned of a warrant.5 The

5
In paragraph 35 of the complaint, for example, Whiting
alleges that malice was implied "by the lack of probable cause in
the underlying arrest." He also says Traylor made material
misstatements of fact in support of the prosecution. Knowingly
making false statements to obtain an arrest warrant can lead to a
Fourth Amendment violation. See U.S. v. Martin, 615 F.2d 318,
327-29 (5th Cir.1980) (extending Franks v. Delaware, 438 U.S.
154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to arrest warrant
cases).

And, in paragraph 29, Whiting quotes from the order
dismissing his criminal charges, where the Florida Court
concluded as a matter of law that Whiting did not commit the
district court appeared to agree—correctly, we think6—that these

kinds of physical restraints were seizures that could be the basis

of a section 1983 claim; but, he concluded that claims based on

these seizures would be time barred because the seizures occurred

outside the four year limitation period.

The Supreme Court tells us that some section 1983 claims do

not begin to accrue until well after the constitutional injury.

See Heck v. Humphrey, --- U.S. ----, ----, 114 S.Ct. 2364, 2374,

129 L.Ed.2d 383 (1994). So, sometimes a section 1983 claim can be

timely even though the claim is based on an unlawful act which

occurred outside the limitations period. In 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. Id. at

----, 114 S.Ct. at 2367.

Here, Whiting says that Defendants applied for and obtained

an arrest warrant and—based on the warrant—caused him to be

unreasonably "seized" in 1988. He says also he was unlawfully

arrested in February 1989. Obtaining an arrest warrant is one of

crime which Defendants said they witnessed and for which
Defendants obtained an arrest warrant. This language also
suggests an allegation of a seizure in violation of the
Fourth Amendment.
6
Justice Rehnquist observed in Albright that Albright's
"surrender to the State's show of authority" (that is, his
voluntary surrender following the issuance of an arrest warrant)
"constituted a seizure for purposes of the Fourth Amendment."
510 U.S. at ----, 114 S.Ct. at 812. So, Whiting's initial
surrender was a "seizure;" he subjected himself physically to
the force of the state in response to an arrest warrant. And, we
have no doubt that the forceful arrest of Whiting at the
courthouse was a "seizure."
the initial steps of a criminal prosecution. Under these

circumstances (that is, where seizures are pursuant to legal

process), we agree with those circuits that say the common law tort

"most closely analogous" to this situation is that of malicious

prosecution.7 See Calero-Colon v. Betancourt-Bebron, 68 F.3d 1, 3

(1st Cir.1995) (section 1983 claim for arrest and prosecution

analogous to malicious prosecution tort where arrest pursuant to

legal process); see also Singer v. Fulton County Sheriff, 63 F.3d

110, 115-16 (2d Cir.1995) (same).8 At common law, a plaintiff had

no malicious prosecution claim until the underlying proceeding was

terminated in his favor.9

7
From the allegations in Whiting's complaint, it does not
appear that the February 1989 arrest was pursuant to an arrest
warrant. Instead, it seems Whiting was charged in a direct
information and, on the charges in that information, arrested by
Traylor at the courthouse. Then, an arrest affidavit was
submitted by Traylor. An arrest following the issuance of an
information is an arrest as part of a prosecution. See Erp v.
Carroll, 438 So.2d 31, 40 (Fla.App.1983) (observing that
"criminal prosecutions are commenced with the filing of an
information ... or at least an arrest pursuant to a[n] ... arrest
warrant"). Where an arrest is made after the filing of an
information and the arrest is the basis of a Fourth Amendment
section 1983 claim, we think the tort of malicious prosecution is
the most analogous tort to the section 1983 claim.
8
In contrast, where an arrest is made before the
commencement of a criminal proceeding, the most analogous tort
might be that of "false arrest." At common law, false arrest
actions accrue before the termination of the proceeding. Also,
false arrest actions provide recovery for injuries suffered
between the time of the arrest and the issuance of legal process.
See Heck, --- U.S. at ----, 114 S.Ct. at 2371.
9
The question of whether a disposition is "favorable" is not
always an easy one. For example, in Singer, 63 F.2d at 118, the
Second Circuit held that a dismissal in the interests of justice
was not a favorable termination. The Florida Supreme Court
discussed the meaning of "favorable termination" in Alamo Rent-A-
Car, Inc. v. Mancusi, 632 So.2d 1352, 1356 (Fla.1994) (observing
that not all nol pros dispositions result in a termination in
defendant's favor).
 So, where a section 1983 plaintiff is seized following the

institution of a prosecution (for example, after a warrant has been

issued for arrest or after an information has been filed) and he

seeks to recover damages for all the elements of the prosecution,

he can properly wait until the prosecution terminates in his favor

to bring his section 1983 claim which alleges that the seizure was

unreasonable. See, e.g., Calero-Colon, 68 F.3d at 4; cf. Heck, --

- U.S. at ----, 114 S.Ct. at 2371. The statute of limitations will

not bar the action as long as the action is promptly brought when

the prosecution has terminated.

In sum, a section 1983 plaintiff must always base his claim

on the violation of a specific federal right. Where the right said

to be violated is the Fourth Amendment, the plaintiff must

establish a concrete violation of that right. When the seizure is

part of the institution of a prosecution (that is, when the Fourth

Amendment violation is of the kind making a section 1983 claim

based on the violation analogous to the tort of malicious

prosecution), the plaintiff may properly wait to sue until the

prosecution terminates in his favor. And, also under analogous

malicious prosecution principles, injuries caused by the unlawful

seizure may include those associated with the prosecution.10

10
Recovery of damages is limited to those injuries proved to
be caused by the defendants. This lawsuit is against arresting
officers. In many cases, arresting officers will not be
responsible for the continuation of the prosecution because the
prosecutor (or some other factor) will break the causal link
between defendants' conduct and plaintiff's injury. Cf. Eubanks
v. Gerwen, 40 F.3d 1157, 1160-61 (11th Cir.1994) (affirming
summary judgment for arresting officers because officers had
nothing to do with decision to prosecute) (citing Barts v.
Joyner, 865 F.2d 1187 (11th Cir.1989)); cf. also Reed, 77 F.3d
at 1053 (observing "the State's Attorney, not the police,
Applying these considerations to the allegations in Whiting's

complaint, we vacate the order of dismissal and remand for further

proceedings.11

VACATED and REMANDED.

prosecutes a criminal action") and Meacham, 82 F.3d at 1563
(preliminary hearing and ruling of judge breaks "chain of
causation"). For now, we are deciding a case about pleadings and
not one about proof of causation.
11
After dismissing the federal claim in Count I, the
district court dismissed the state claim in Count II for lack of
jurisdiction. We vacate the dismissal of Count II and remand for
further proceedings on the state claim.