[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 01-15827 MARCH 4, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 99-02552 CV-B-NE
MELVIN ALAN WOOD,
Plaintiff-Appellee,
versus
MICHAEL KESLER, individually and in his
capacity as an Alabama State Trooper,
Defendant-Appellant,
BRIAN JONES,
Defendant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(March 4, 2003)
Before CARNES, HULL and ALARCON*, Circuit Judges.
*
Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth
Circuit, sitting by designation.
HULL, Circuit Judge:
Defendant Michael Kesler, a state trooper, appeals the denial of immunity
on plaintiff’s § 1983 claims and state law claims. We reverse because defendant
Kesler was entitled to qualified immunity on the § 1983 claims and discretionary-
function immunity on the state law claims.
I. FACTUAL BACKGROUND
A. Traffic Stop
On March 30, 1998, plaintiff Melvin Alan Wood (“Wood”) was driving a
large tractor truck called a “mobile home hauler.” Instead of a mobile home,
Wood was carrying a pickup truck “piggyback,” and the pickup truck was
completely off the ground. Wood’s passenger was Bob Payne. Traveling behind
Wood, David Martin was driving another “mobile home hauler,” also without a
mobile home.
Both Wood and Martin were driving their tractor trucks northbound on I-65
in Alabama to pick up mobile homes for transport in Nashville, Tennessee.
Kesler, a state trooper in Alabama, was monitoring northbound traffic on I-65
north of Athens, Alabama. This stretch of interstate highway was under
construction and had been reduced to a single lane of traffic on the northbound
2
side. Only the left lane of the northbound interstate was open. Marker barrels
were positioned between the left lane and the closed right lane of the northbound
interstate. Trooper Kesler was parked in the closed right lane with his vehicle at
the bottom of a hill and facing the oncoming northbound traffic. Because of the
construction and barrels, the normal speed limit of 70 mph was reduced to 45 mph
for the single open lane of the northbound side.
Trooper Kesler stopped both Wood and Martin for speeding. They each
produced a driver’s license, log book, and medical card. Kesler cited Wood and
Martin for speeding and not having updated log books. The citation for Wood
charged him with speeding at 62 mph in a 45 mph zone. Trooper Kesler advised
both drivers to update their log books at the nearest truck stop.
In his deposition, plaintiff Wood denies that he was speeding. Wood
testified that he was traveling “around the 45 zone, maybe less, because I had been
through that zone. And I knew that the troopers had been working it strongly.”
Upon seeing Trooper Kesler’s blue lights flashing, Wood “didn’t hit [his] brakes
3
or anything,” but just “went on down the hill and pulled off.”1 According to
Wood, Kesler never informed him that his conduct constituted reckless driving.2
Further, Wood’s passenger Payne testified that Wood did not lock his
brakes, swerve or lose control of his truck. Martin, driving behind Wood, testified
that Wood slowed his vehicle to approximately 45 to 50 mph.
B. Reckless Driving Citation
Trooper Kesler’s traffic citations set plaintiff Wood’s initial court
appearance for May 4, 1998. Wood appeared in court, pled not guilty and
requested a trial date, which was set for July 8, 1998. Later, Wood, pro se, filed a
document request for Kesler’s records. On the advice of his superiors and the
district attorney’s office, Kesler did not provide the documents or respond.
1
We recount the facts in the light most favorable to Wood, the non-moving
party, on a motion for summary judgment. Lee v. Ferraro, 284 F.3d 1188, 1190
(11th Cir. 2002); Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir.
1998). For that reason, what we set out in this opinion as “the facts” for summary
judgment purposes may not be the actual facts. See Swint v. City of Wadley, 51
F.3d 988, 992 (11th Cir. 1995).
2
Kesler contends that he advised both drivers that their conduct constituted
reckless driving, but that in his discretion he would not issue citations for that
offense.
4
At trial on July 8, 1998, plaintiff Wood refused to accept a plea bargain and
decided to defend against the charges.3 At that time, Assistant District Attorney
Brian Jones spoke with both plaintiff Wood and Trooper Kesler about the
circumstances surrounding the speeding and log book citations. Kesler advised
prosecutor Jones that Wood had lost control of his vehicle due to Wood’s locking
his brakes, but that Kesler had decided not to issue a reckless driving citation to
Wood. After speaking with Trooper Kesler, prosecutor Jones instructed Kesler to
issue Wood a citation for violation of the reckless driving statute.4
Trooper Kesler complied with Jones’s instruction, back-dating the reckless
driving citation to March 30, 1998, the date of the speeding charge.5 Kesler also
obtained an arrest warrant on the reckless driving charge. Kesler did not believe
3
Martin entered into a plea agreement with prosecutor Jones on July 8,
1998.
4
The record is unclear about the number of times that prosecutor Jones
spoke with Wood and Kesler and in which order. Wood originally filed his
complaint against Trooper Kesler only, but he amended it to add Assistant District
Attorney Brian Jones as a defendant. The district court dismissed defendant Jones
from the case, and Jones is not a party to this appeal.
5
Wood’s complaint alleges that Kesler made false written statements on the
reckless driving citation; however, he does not indicate which statements were
false.
5
that he could refuse when prosecutor Jones told him to write the reckless driving
citation. Kesler felt that Jones was his superior.
C. Wood’s Arrest
Wood refused to sign the reckless driving citation, despite being informed
that it was not an admission of guilt and that refusing to sign it would result in his
being arrested and taken to jail. Trooper Kesler then arrested Wood and took him
to the county jail. The full custodial arrest was based on Wood’s refusal to sign
the citation. On the way to the jail, Kesler asked Wood why he had not taken the
plea agreement and why he had requested Kesler’s records. Wood spent four to
five hours at the jail before being released.
At a subsequent trial on the charges, the court found Wood guilty as
charged of speeding 62 mph in a 45 mph zone and not guilty of reckless driving.6
II. PROCEDURAL HISTORY
Wood filed this action against Trooper Kesler in his individual and official
capacities alleging civil rights violations under 42 U.S.C. § 1983, a civil rights
6
The front of the speeding citation expressly charges that Wood was
traveling “62 mph” in a “45 mph Speed Limit.” The back of the speeding citation
is signed by the magistrate judge, and states that the magistrate judge found Wood
“Guilty as charged.”
6
conspiracy under 42 U.S.C. § 1985, and false arrest and malicious prosecution
under Alabama law.
Following discovery, defendant Kesler moved for summary judgment. The
district court granted summary judgment in Kesler’s favor on all claims against
him in his official capacity and on Wood’s § 1985 claim against him individually.
The district court, however, denied summary judgment to Kesler individually on
Wood’s § 1983 claims and state law claims. Kesler timely appealed seeking
immunity on all remaining claims.7
III. QUALIFIED IMMUNITY ON § 1983 CLAIMS
We first address whether Trooper Kesler is entitled to qualified immunity on
plaintiff Wood’s § 1983 claims for false arrest, malicious prosecution, and
retaliation.8 Wood asserts that Kesler lacked probable cause to charge him with
7
The denial of summary judgment based on absolute and qualified immunity
is immediately appealable, Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), and so
is the denial of Alabama’s discretionary-function immunity, Sheth v. Webster, 145
F.3d 1231, 1238 (11th Cir. 1998). See also Taylor v. Adams, 221 F.3d 1254, 1260
n.9 (11th Cir. 2000) (stating that “the same principles of federal law governing an
appeal of the denial of qualified immunity at the summary judgment stage also
govern an appeal of the denial of Alabama discretionary-function immunity at the
same stage”); Nolin v. Isbell, 207 F.3d 1253, 1255 n.1 (11th Cir. 2000).
8
We review de novo the denial of summary judgment, construing the facts in
the light most favorable to the non-moving party. Lee v. Ferraro, 284 F.3d 1188,
1190 (11th Cir. 2002); Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999).
7
reckless driving and to arrest him. Wood contends that Kesler did so maliciously
and in retaliation for Wood’s exercising his rights to trial and to subpoena records.
A. General Principles
“Qualified immunity offers complete protection for government officials
sued in their individual capacities if their conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “The purpose of this immunity
is to allow government officials to carry out their discretionary duties without the
fear of personal liability or harassing litigation, protecting from suit all but the
plainly incompetent or one who is knowingly violating the federal law.” Lee v.
Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks and
citations omitted).
To receive qualified immunity, “the public official must first prove that he
was acting within the scope of his discretionary authority when the allegedly
wrongful acts occurred.” Id. (internal quotation marks omitted). Here, it is clear
that Trooper Kesler was acting within the course and scope of his discretionary
authority when he charged and arrested Wood. “Once the defendant establishes
8
that he was acting within his discretionary authority, the burden shifts to the
plaintiff to show that qualified immunity is not appropriate.” Id.
The Supreme Court has set forth a two-part test for the qualified immunity
analysis. “The threshold inquiry a court must undertake in a qualified immunity
analysis is whether [the] plaintiff’s allegations, if true, establish a constitutional
violation.” Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 2513, 153 L. Ed. 2d
666 (2002) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). “If no
constitutional right would have been violated were the allegations established,
there is no necessity for further inquiries concerning qualified immunity.”
Saucier, 533 U.S. at 201. However, “[i]f a constitutional right would have been
violated under the plaintiff’s version of the facts, ‘the next, sequential step is to
ask whether the right was clearly established.’” Vinyard, 311 F.3d at 1346
(quoting Saucier, 533 U.S. at 201). Thus, we now analyze whether Trooper
Kesler’s conduct violated Wood’s constitutional rights.
B. False Arrest
An arrest does not violate the Fourth Amendment if a police officer has
probable cause for the arrest. See Lee, 284 F.3d at 1194-95; Ortega v. Christian,
85 F.3d 1521, 1525 (11th Cir. 1996); Von Stein v. Brescher, 904 F.2d 572, 578
(11th Cir. 1990). “For probable cause to exist, … an arrest must be objectively
9
reasonable based on the totality of the circumstances.” Lee, 284 F.3d at 1195.
“This standard is met when the facts and circumstances within the officer’s
knowledge, of which he or she has reasonably trustworthy information, would
cause a prudent person to believe, under the circumstances shown, that the suspect
has committed, is committing, or is about to commit an offense.” Rankin v.
Evans, 133 F.3d 1425, 1435 (11th Cir. 1998) (internal quotation marks omitted).
“Although probable cause requires more than suspicion, it does not require
convincing proof, and need not reach the [same] standard of conclusiveness and
probability as the facts necessary to support a conviction.” Lee, 284 F.3d at 1195
(internal quotation marks and citations omitted) (alteration in original).
To receive qualified immunity protection, “an officer need not have actual
probable cause but only ‘arguable probable cause.’” Montoute v. Carr, 114 F.3d
181, 184 (11th Cir. 1997). Because only arguable probable cause is needed, “the
inquiry is not whether probable cause actually existed, but instead whether an
officer reasonably could have believed that probable cause existed, in light of the
information the officer possessed.” Id. “Even law enforcement officials who
reasonably but mistakenly conclude that probable cause is present are entitled to
immunity.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (internal quotation marks
omitted).
10
We conclude that Kesler had actual probable cause to issue the reckless
driving citation and to arrest Wood. To show why, we discuss Alabama’s reckless
driving statute and then the evidence in this case. Ala. Code § 32-5A-190(a)
defines reckless driving as follows:
Any person who drives any vehicle carelessly and heedlessly in
willful or wanton disregard for the rights or safety of persons or
property, or without due caution and circumspection and at a speed or
in a manner so as to endanger or be likely to endanger any person or
property, shall be guilty of reckless driving.
This statute divides the offense of reckless driving into two alternatives. See
White v. State, 69 So. 2d 874, 875 (Ala. Ct. App. 1953). The first alternative
prohibits driving a vehicle “carelessly and heedlessly in willful or wanton
disregard for the rights or safety of persons or property.” Ala. Code § 32-5A-
190(a). The second alternative prohibits driving “without due caution and
circumspection and at a speed or in a manner so as to endanger or be likely to
endanger any person or property.” Id.
Under Alabama law, the phrase “without due caution and circumspection”
means “no more than negligence.” Kirk v. State, 47 So. 2d 283, 285 (Ala. Ct.
App. 1950). Wood thus may be guilty of reckless driving by driving negligently
and at a speed or in a manner likely to endanger any person or property. Id.; Ala
Code § 32-5A-190(a).
11
Further, under Alabama law, what constitutes reckless driving is generally a
question of fact based on the total circumstances. See, e.g., Bailey v. State, 96 So.
2d 829, 829 (Ala. Ct. App. 1957) (evidence sufficient to show reckless driving
when defendant sped up upon seeing officers, instigated police chase, and drove
seven or eight miles over a rough, slick road at speeds ranging from 75 to 90
mph); Bradford v. State, 47 So. 2d 599, 600 (Ala. Ct. App. 1950) (evidence
sufficient to sustain conviction where defendant passed two cars on sharp curve
driving 70 to 75 mph); see also Malbis Bakery Co. v. Collins, 15 So. 2d 705, 708
(Ala. 1943) (whether allowing four persons to ride in front seat was absence of
“due caution and circumspection” was a question of fact under all of the
circumstances).9
In light of this Alabama law, the evidence shows that Trooper Kesler had
actual probable cause to charge Wood with reckless driving. Wood was driving a
9
White, Kirk, Bailey, Bradford and Malbis Bakery all interpreted Title 36,
Section 3, Code 1940, a prior version of the reckless driving statute, which was
nearly identical to the current version. Title 36, Section 3, Code 1940 read:
Any person who drives any vehicle upon a highway carelessly and
heedlessly in wilful or wanton disregard of the rights or safety of
others, or without due caution and circumspection and at a speed or in
a manner so as to endanger or be likely to endanger any person or
property, shall be guilty of reckless driving.
Bailey v. State, 96 So. 2d 829, 829 (Ala. Ct. App. 1957) (quoting Title 36, Section
3, Code 1940).
12
large tractor truck and hauling yet another vehicle. The interstate highway was
reduced to a single lane of traffic due to construction and barrels divided the open
and closed lanes. Due to these hazardous conditions, the normal speed limit of 70
mph was reduced to 45 mph. Wood, however, was driving 17 mph over that speed
limit. The net result is that Wood was speeding in a large tractor truck in an area
of hazardous conditions on an interstate highway. Under these facts, an officer in
Trooper Kesler’s position had actual probable cause to believe that Wood was
violating the reckless driving statute. See Ala. Code § 32-5A-190(a).
In particular, Wood’s speeding, his going 17 mph over the speed limit, is an
established fact properly considered in determining if probable cause existed for
the reckless driving citation. This is because Wood’s conviction for driving at 62
mph in a 45 mph zone collaterally estops him from relitigating the fact of his
speeding in this § 1983 case. See Brown v. City of Hialeah, 30 F.3d 1433, 1437
(11th Cir. 1994) (indicating that collateral estoppel applies in § 1983 cases and
that we determine the preclusive effect of a state court judgment by applying the
estoppel rules of that state); Vazquez v. Metro. Dade County, 968 F.2d 1101, 1106
(11th Cir. 1992) (same); Parker v. Williams, 862 F.2d 1471, 1475 n.2 (11th Cir.
1989) (“Defendant Williams had his opportunity to litigate the fact of the rape in
his state criminal proceeding. Therefore, collateral estoppel was available to
13
preclude him from relitigating the issue in this [§ 1983] case [against the Macon
County, Alabama chief jailer].”), overruled in part on other grounds by Turquitt v.
Jefferson County, 137 F.3d 1285 (11th Cir. 1998) (en banc); Marcus v. St. Paul
Fire and Marine Ins. Co., 651 F.2d 379, 382 n.3 (5th Cir. Unit B 1981) (applying
Alabama law and stating generally that “[a] party may be precluded by factual
issues decided against it in a previous case, even if the estoppel is raised in the
second case by a litigant who was not a party to the first proceeding in which the
10
issue was determined”).
10
Alabama’s law on collateral estoppel is somewhat unclear, but under any
reading of that law, collateral estoppel applies to preclude Wood, as a party to the
prior speeding case, from contending in this case that he was not speeding. Many
Alabama decisions apply collateral estoppel as long as the party against whom it is
asserted was a party, or in privity with a party, in the prior case. See, e.g.,
McCorkle v. McElwey, 576 So. 2d 202, 205 (Ala. 1991) (stating that “[w]hile the
issue preclusion aspect of res judicata does not require complete identity of
parties, it does require that the party against whom res judicata is asserted either
was a party or was in privity with a party to the prior action”); Constantine v.
United States Fid. and Guar. Co., Inc., 545 So. 2d 750, 755-56 (Ala. 1989);
Whisman v. Alabama Power Co., 512 So. 2d 78, 82 (Ala. 1987) (stating “[t]he
party identity criterion of res judicata does not require complete identity, but only
that the party against whom res judicata is asserted was either a party or in privity
with a party to the prior action”); Pearson v. City of Hoover, 706 So. 2d 1251,
1252-53 (Ala Civ. App. 1997).
Other decisions appear to require mutuality, that is both parties must be the
same in both suits or in privity with them, and bound by the previous judgment, or
neither party may invoke collateral estoppel in the subsequent case. Leon C.
Baker, P.C. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 821 So. 2d 158, 165
(Ala. 2001) (stating “Alabama has not followed the trend of abolishing the
requirement that parties be identical, sometimes referred to as the mutuality of
14
Trooper Kesler also had actual probable cause to arrest Wood for refusing to
sign the reckless driving citation. Under Alabama law, refusal to sign a citation is
cause for a custodial arrest. Gouin v. State, 581 So. 2d 1279, 1282 (Ala. Crim.
App. 1991) (citing Ala. Code § 32-1-4(a) and stating that “the custodial arrest was
authorized and justified because the appellant refused to sign the traffic ticket”);
Hays v. City of Jacksonville, 518 So. 2d 892, 893 (Ala. Crim. App. 1987).11 There
is no dispute that Wood refused to sign the reckless driving citation and that he
was aware that if he refused to sign, he would be taken to jail.
estoppel requirement” but concluding the corporation was in privity with its sole
shareholder and estoppel applied); Redmond v. Bankester, 757 So. 2d 1145, 1150-
51 n.2 (Ala. 1999); Hurt v. Pullman Inc., 764 F.2d 1443, 1450-51 (11th Cir. 1985).
Alabama, however, follows an expansive definition of privity, which includes not
only a successive interest to the same property right, but also “an identity of
interest in the subject matter of the litigation.” See, e.g., Leon C. Baker, P.C., 821
So. 2d at 165; see also Dairyland Ins. Co. v. Jackson, 566 So. 2d 723, 726 (Ala.
1990) (collecting cases on “identity of interest” test for privity). Wood was a party
in both cases. Although State Trooper Kesler was not a party in the prior case,
Kesler acted for the State in charging Wood with speeding in the prior case and
shares an identity of interest with the State in the subject matter of the litigation.
Thus, any mutuality requirement is satisfied.
11
In any event, the United States Supreme Court recently has concluded that
“[i]f an officer has probable cause to believe that an individual has committed
even a very minor criminal offense in his presence, he may, without violating the
Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S.
318, 354 (2001).
15
In sum, Trooper Kesler had actual probable cause to issue the reckless
driving citation and to arrest Wood.12 Because Wood has not established a Fourth
Amendment violation, Trooper Kesler is entitled to qualified immunity on Wood’s
§ 1983 false arrest claim. See Marx v. Gumbinner, 905 F.2d 1503, 1505-06 (11th
Cir. 1990) (“The existence of probable cause … is an absolute bar to a section
1983 action for false arrest.”).13
C. Malicious Prosecution
12
Wood asserts that Kesler’s admission that he was not surprised that Wood
was found not guilty of reckless driving is somehow evidence that Kesler lacked
probable cause. We disagree because the probable cause determination is entirely
different from the standard for a conviction. Knight v. Jacobson, 300 F.3d 1272,
1275 (11th Cir. 2002); see also Von Stein, 904 F.2d at 578 n.9 (“‘Probable cause’
defines a radically different standard than ‘beyond a reasonable doubt,’ and while
an arrest must stand on more than suspicion, the arresting officer need not have in
hand evidence sufficient to obtain a conviction.”).
Wood also contends that former Mississippi sheriff Payne’s testimony that
Wood did nothing to constitute reckless driving is evidence of no probable cause.
Payne’s personal legal conclusion is irrelevant, and we look to the facts to
determine probable cause.
13
While Trooper Kesler had actual probable cause to issue the citation and
arrest Wood, we note Kesler also had arguable probable cause, which is all that is
required for an arresting officer to be entitled to qualified immunity from a Fourth
Amendment claim. Lee, 284 F.3d at 1195; Montoute, 114 F.3d at 184. Trooper
Kesler also seeks absolute prosecutorial immunity on the basis that prosecutor
Jones directed him to issue the reckless driving citation, and thus that Kesler was
performing only a prosecutorial function under the direction of a state prosecutor.
Because Kesler is entitled to qualified immunity, we need not address absolute
immunity.
16
Plaintiff Wood also asserts a § 1983 claim for malicious prosecution based
on Trooper Kesler’s issuing the reckless driving citation and arresting him. Our
Court has identified malicious prosecution as a violation of the Fourth
Amendment and a viable constitutional tort cognizable under § 1983. See Uboh v.
Reno, 141 F.3d 1000, 1002-04 (11th Cir. 1998); Whiting v. Traylor, 85 F.3d 581,
584 (11th Cir. 1996); Kelly v. Curtis, 21 F.3d 1544, 1554-55 (11th Cir. 1994).14
To establish a federal malicious prosecution claim under § 1983, the plaintiff must
prove a violation of his Fourth Amendment right to be free from unreasonable
seizures in addition to the elements of the common law tort of malicious
prosecution. See Uboh, 141 F.3d at 1002-04; Whiting, 85 F.3d at 584-86; Kelly,
21 F.3d at 1544, 1553-55.15 As to the constituent elements of the common law
14
In Albright v. Oliver, 510 U.S. 266 (1994) (plurality opinion), the
Supreme Court concluded that the substantive due process component of the
Fourteenth Amendment did not provide the constitutional source of a right to be
free from malicious prosecution. But, the Court left open the possibility that the
Fourth Amendment is the appropriate source of the right to be free from malicious
prosecution. Id. at 274-75. While there is no definitive Supreme Court decision,
our Court has recognized the constitutional tort of malicious prosecution under the
Fourth Amendment.
15
In Whiting, we emphasized that the 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.” 85 F.3d at 584 n.4; see United States
Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1289 n.16 (11th Cir. 2001) (stating
“TIECO, a corporation, was never arrested, detained, or seized in any way” and
“[t]hus, the Fourth Amendment violation envisioned by Whiting could not have
17
tort of malicious prosecution, this Court has looked to both federal and state law
and determined how those elements have historically developed. Uboh, 141 F.3d
at 1002-04; Whiting, 85 F.3d at 584-86. For example, in Uboh, this Court
examined both federal law and Georgia law and indicated that, for purposes of a §
1983 malicious prosecution claim, the constituent elements of the common law
tort of malicious prosecution included: (1) a criminal prosecution instituted or
continued by the present defendant; (2) with malice and without probable cause;
(3) that terminated in the plaintiff accused’s favor; and (4) caused damage to the
plaintiff accused. 141 F.3d at 1004.16 We note that these are also the same
occurred in this case”). Other circuits agree. See Lambert v. Williams, 223 F.3d
257, 261 (4th Cir. 2000) (citing decisions from the First, Second, Seventh, Tenth
and Eleventh circuits and stating that “[o]thers have held that the malicious
prosecution claim under § 1983 is properly understood as a Fourth Amendment
claim for unreasonable seizure which incorporates certain elements of the common
law tort”).
16
In Uboh this Court stated:
Because the species of Fourth Amendment violation alleged in
this case arises by way of analogy to the common law tort of
malicious prosecution, courts historically have looked to the common
law for guidance as to the constituent elements of the claim. …
Georgia law provides that:
[a] criminal prosecution which is carried on maliciously and without
any probable cause and which causes damage to the person
prosecuted shall give him a cause of action.
O.C.G.A. § 51-7-40. Further, in order to state a cause of action for
malicious prosecution, a plaintiff must allege and prove that the
criminal proceeding that gives rise to the action has terminated in
18
elements required under Alabama law for the tort of malicious prosecution.
Delchamps, Inc. v. Bryant, 738 So. 2d 824, 831-32 (Ala. 1999).
This Court in Uboh also had to determine whether the common law element
of favorable termination was met. 141 F.3d at 1004. To do so, the Uboh Court
determined what constituted a favorable termination by examining primarily
federal law. Id. at 1004-06. In sum, although both state law and federal law help
inform the elements of the common law tort of malicious prosecution, a Fourth
Amendment malicious prosecution claim under § 1983 remains a federal
constitutional claim, and its elements and whether they are met ultimately are
controlled by federal law.17
favor of the accused. See Kelly v. Serna, 87 F.3d at 1240-41; Heck v.
Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 2371, 129 L.Ed.2d
383 (1994) (“One element that must be alleged and proved in a
malicious prosecution action is termination of the prior criminal
proceeding in favor of the accused.”).
141 F.3d at 1004. In Uboh, the plaintiff initially filed his action against the
defendant federal officers pursuant to 42 U.S.C. § 1983, but later amended the
complaint to allege correctly a cause of action within the framework of Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). 141 F.3d at 1001 n.2. Although technically a Bivens action, Uboh
essentially treated the constitutional tort of malicious prosecution under the Fourth
Amendment as having the same elements whether brought under § 1983 against
state actors or under Bivens against federal actors.
17
See Green v. Montgomery, 219 F.3d 52, 60 n.2 (2d Cir. 2000) (“[The]
federal law of probable cause – not state law – should determine whether a
plaintiff has raised a genuine issue of material fact with respect to a § 1983
19
In this case, Wood’s § 1983 malicious prosecution claim is that Trooper
Kesler maliciously issued a reckless driving citation without probable cause and
caused him to be unreasonably “seized” by making a custodial arrest on that
charge when he refused to sign the citation. While a seizure (i.e., an arrest in fact)
occurred in the course of the prosecution, Wood has not shown that Kesler acted
without probable cause, which is a required element of Wood’s § 1983 malicious
prosecution claim. As outlined above, Trooper Kesler had actual probable cause
to issue the reckless driving citation and for the custodial arrest, and thus, that
probable cause bars his § 1983 malicious prosecution claim.
Because Wood has not shown a Fourth Amendment violation, Trooper
Kesler is entitled to qualified immunity on Wood’s § 1983 malicious prosecution
claim.
D. Retaliation
Wood also asserts a § 1983 retaliation claim based on Kesler’s conduct.
Although Wood attempts to rely on the Fourth Amendment, there is no retaliation
claim under the Fourth Amendment separate and distinct from Wood’s malicious
malicious prosecution claim.”). When malicious prosecution is brought as a
federal constitutional tort, the outcome of the case does not hinge on state law, but
federal law, and does not differ depending on the tort law of a particular state.
20
prosecution and false arrest claims.18 Instead, the only cause of action for
retaliation that arguably applies here is retaliatory prosecution in violation of the
First Amendment.
That retaliatory prosecution claim, however, is also defeated by the
existence of probable cause. See Dahl v. Holley, 312 F.3d 1228, 1236 (11th Cir.
2002) (affirming summary judgment on retaliatory arrest claim in violation of
plaintiff’s First Amendment rights and stating that “[w]hatever the officers’
motivation, however, the existence of probable cause … defeats her … claim”);
Redd v. City of Enterprise, 140 F.3d 1378, 1383 (11th Cir. 1998) (“Because we
hold that the officers had arguable probable cause to arrest [the plaintiff] for
disorderly conduct, we must hold that the officers are also entitled to qualified
immunity from the plaintiffs’ First Amendment claims.”); Keenan v. Tejada, 290
F.3d 252, 260 (5th Cir. 2002) (noting that “retaliatory criminal prosecutions in
violation of the First Amendment are actionable only if a plaintiff can also prove
the common-law elements of malicious prosecution, including the absence of
18
Wood points to Whiting v. Traylor, 85 F.3d 581 (11th Cir. 1996) and
Jones v. Cannon, 174 F.3d 1271 (11th Cir. 1999), but Whiting involved a
malicious prosecution claim under the Fourth Amendment, and Jones concerned a
false arrest claim under the Fourth Amendment. Neither decision supports a
separate and distinct retaliation claim under the Fourth Amendment.
21
probable cause to prosecute”). Therefore, Kesler is entitled to qualified immunity
on Wood’s § 1983 retaliation claim.
IV. DISCRETIONARY-FUNCTION IMMUNITY
Plaintiff Wood also asserted state law claims for malicious prosecution and
false arrest; however, Trooper Kesler is entitled to Alabama’s discretionary-
function immunity on Wood’s state law claims.
In Alabama, law enforcement officers, such as Trooper Kesler, enjoy
statutory immunity from suit for the “performance of any discretionary function
within the line and scope of his or her law enforcement duties.” Ala. Code § 6-5-
338.19 “Under discretionary-function-immunity analysis, a court first determines
whether the government defendant was performing a discretionary function when
the alleged wrong occurred; if so, ‘the burden shifts to the plaintiff to demonstrate
that the defendant[ ] acted in bad faith, with malice or willfulness in order to deny
[him] immunity.’” Scarbrough v. Myles, 245 F.3d 1299, 1303 n.9 (11th Cir. 2001)
(alteration in original) (applying Alabama law and quoting Sheth v. Webster, 145
F.3d 1231, 1239 (11th Cir. 1998)). Discretionary acts are “‘those acts as to which
19
See also Ala. Const. art. I, § 14. This provision also affords certain
immunity to state agents in their individual capacities. See, e.g., Ex Parte Butts,
775 So. 2d 173, 177-78 (Ala. 2000); Ex Parte Cranman, 792 So. 2d 392 (Ala.
2000). We need not address the scope of this constitutional immunity as Trooper
Kesler is entitled to statutory immunity in any event.
22
there is no hard and fast rule as to the course of conduct that one must or must not
take and those acts requiring exercise in judgment and choice and involving what
is just and proper under the circumstances.’” Sheth, 145 F.3d at 1239 (quoting
Wright v. Wynn, 682 So. 2d 1, 2 (Ala. 1996)); see Ex Parte City of Montgomery,
758 So. 2d 565, 570 (Ala. 1999).
Under Alabama law, Kesler’s issuance of the reckless driving citation and
arrest of Wood were discretionary acts for immunity purposes. Ex Parte City of
Montgomery, 758 So. 2d at 570; Wright, 682 So. 2d at 2. Furthermore, Wood has
not presented any evidence that Kesler acted in bad faith, maliciously or willfully
to deny him discretionary-function immunity. Wood stresses that Kesler did not
respond to his subpoena request and that Kesler asked Wood about this request
during the ride to the jail. Kesler, however, showed the subpoena request to his
superiors and was advised that he was not required to produce the records. There
is no evidence of any malicious motive.
Wood further contends that Kesler’s delay in issuing the reckless driving
citation and his asking about Wood’s not guilty plea evidence Kesler’s bad faith.
Although Kesler did not issue the citation at the scene on March 30 and allegedly
asked about Wood’s not guilty plea, this does not alter the fact that he had
probable cause to issue it. The existence of probable cause, and in particular the
23
facts showing that probable cause, contradict any suggestion of malicious intent or
bad faith. See Ex Parte City of Montgomery, 758 So. 2d at 570. Further, even
assuming the ultimate decision to issue the reckless driving citation was Kesler’s,
he acted on prosecutor Jones’s request, which further defeats the claim of malice
or bad faith. Thus, we conclude that under Alabama law Trooper Kesler is entitled
to discretionary-function immunity on Wood’s state law claims for false arrest and
malicious prosecution.
V. CONCLUSION
For these reasons, we reverse the denial of defendant Kesler’s motion for
summary judgment and remand this case to the district court for entry of final
judgment in favor of Trooper Kesler on all of Wood’s claims.
REVERSED AND REMANDED
24