Melvin Alan Wood v. Michael Kesler, individually and in his capacity as an Alabama State Trooper, Brian Jones

[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