Roger McMaster v. Cabinet for Human Resources

824 F.2d 518, 1987 U.S. App. LEXIS 10020

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 29, 1987
• Docket: 86-5606
• Status: Published

Opinions

COHN, District Judge.

I.

This is an action pursuant to 42 U.S.C. §§ 1983 and 1985 claiming violation of substantive due process rights because of malicious prosecution. Also involved are pendent state claims for malicious prosecution and, apparently, for defamation and intentional infliction of mental distress.

Appellants (one deceased), plaintiffs below, worked for the Cabinet for Human Resources, a Kentucky agency responsible in part for the care of juvenile delinquents. Following a highly publicized death of a juvenile under questionable circumstances, they were suspended “for cause” on January 18, 1983, pursuant to the grounds and procedures set forth in Ky.Rev.Stat. § 18A.095; 101 Ky.Admin.Reg. 1:120 §§ 1, 3, and 7. Their letters of suspension also announced their dismissal effective February 1,1983. Pursuant to state regulations, 101 Ky.Admin.Reg. 1:120 § 3(3), they invoked their pre-dismissal statutory right to have their counsel meet with their department head (plaintiffs themselves chose not to be present) to persuade him to revoke the decision to dismiss. He declined to do so.

Pursuant to the statute, plaintiffs then appealed to the state personnel board seeking reinstatement. 101 Ky.Admin.Reg. 1:130. Plaintiffs’ action was for “reinstatement,” not a final determination on their dismissal. Plaintiffs concede that their dismissal was an act complete in itself without any approval required by the state personnel board. The state personnel board ruled for plaintiffs on June 29, 1983, awarding reinstatement and full back pay. After the state personnel board ruled for plaintiffs, defendants (plaintiffs’ employer — also known as the “appointing authority” under the statute — and various state agents alleged to have conspired to dismiss plaintiffs) appealed to the state circuit court as allowed by the statute. The circuit court affirmed the personnel board on October 6, 1983.

On June 15, 1984, plaintiffs brought this action in the federal district court for the Eastern District of Kentucky claiming bad faith conspiracy to dismiss them.¹ They alleged that because their dismissal was pursuant to an administrative scheme for dismissing state employees, the dismissal itself was the institution of proceedings against them that ultimately terminated in their favor — the quintessential element for actions for malicious prosecution. Plaintiffs do not characterize their appeal to the personnel board as the institution of proceedings; rather, they argue that they were required under the statutory scheme to follow through on a process already instituted by defendants. Thus, they characterize the act of dismissal as the institution of a malicious prosecution and go on to characterize defendants’ appeal to the state circuit court as the continuation of proceedings without probable cause.

Defendants moved for dismissal or summary judgment on a variety of grounds, including Eleventh Amendment immunity, res judicata, and collateral estoppel. The district court ruled that the mere dismissal of state employees, despite a statutory scheme providing a procedure for dismissal, does not constitute the institution of proceedings. Thus, the district court ruled that they failed to state a claim for malicious prosecution. Alternatively, the district court held that plaintiffs’ section 1983 claim was time-barred under Kentucky’s analogous one-year statute of limitations for personal injury actions, Ky.Rev.Stat. § 413.140, since they failed to file their action within one year of their dismissal. See Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Mulligan v. Hazard, 777 F.2d 340 (6th Cir.1985).

Plaintiffs appeal dismissal of the section 1983 substantive due process claim based on malicious prosecution. They have not argued their section 1985 or equal protection claims on appeal. They do not dispute that the district court could properly have dismissed their pendent state claim, if any, after the federal claims were dismissed. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

Plaintiffs never claimed denial of procedural due process and concede that defendants complied with the statutory procedures for dismissing them. Nor have plaintiffs claimed substantive due process violations based on the operative act of dismissal. Plaintiffs apparently framed their claim as one analogous to malicious prosecution in an attempt to avoid the pre-clusive effect of Kentucky’s one-year statute of limitations, which had already effectively barred any claims based on and measured from the operative act of dismissal some sixteen months earlier.²

II.

The parties agree on several points. First, they agree that state tenured employees have an interest, protected by the United States Constitution, in retaining their jobs absent compliance with the fundamental requirements of due process. They also agree that malicious prosecution may, in an appropriate case, support a section 1983 action and that malicious prosecution may apply to the institution of administrative proceedings, rather than the narrow common-law view that the tort applied only to strictly judicial proceedings. They further agree that Wilson v. Garcia, supra, requires a federal court in a section 1983 action to look to the analogous state cause of action for personal injuries to ascertain the applicable statute of limitations. Lastly, they agree that the relevant statute of limitations in Kentucky required that plaintiffs file their section 1983 claim within one year of accrual of their cause of action.

While the parties disagree about when the statute of limitations commenced running,³ we need not decide this issue. Construing the complaint favorably to plaintiffs, as we must in considering a motion to dismiss, see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Dunn v. State of Tennessee, 697 F.2d 121, 125 (6th Cir.1982), cert. denied sub nom. Wyllie v. Dunn, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983), it is abundantly clear that plaintiffs have failed to state a claim for malicious prosecution under section 1983.

III.

A.

While we review only the dismissal of the federal claim, the parties have nonetheless discussed the section 1983 claim throughout in terms of analogy to the common law tort of malicious prosecution. Section 1983 is a creature of federal statute and does not depend for its existence on the definition of similar state causes of action. The Supreme Court reaffirmed in Wilson v. Garcia, supra, that federal law and not state law is relevant for purposes of characterizing a section 1983 claim. 471 U.S. at 268-71, 105 S.Ct. at 1943-44. Nonetheless, where a section 1983 claim is essentially for deprivation of civil rights through malicious prosecution, we look to common law elements of a malicious prosecution claim in judging the merits of the section 1983 action. See Dunn, supra, 697 F.2d at 125 n. 4 (adopting definition of malicious prosecution of state in which claim arose); Lucsik v. Board of Educ. of Brunswick City School Dist., 621 F.2d 841, 842 (6th Cir.1980).

The elements of malicious prosecution in Kentucky are:

(1) the institution or continuation of original judicial proceedings, either civil or criminal, or of administrative or disciplinary proceedings, (2) by, or at the instance, of the plaintiff, (3) the termination of such proceedings in defendant’s favor, (4) malice in the institution of such proceeding, (5) want or lack of probable cause for the proceeding, and (6) the suffering of damage as a result of the proceeding.

Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981). Because the tort of malicious prosecution was disfavored at common law, the prerequisites for maintaining the action are “strict.” Id.

A wide variety of judicial and executive-branch actions related to law and its enforcement will support a cause of action for malicious prosecution where there is injury to “person” or “economic livelihood” in some sense. See W. Prosser & W. Keeton, The Law of Torts § 120, at 890-91 (5th ed. 1984). Defendants concede that Kentucky and other jurisdictions have rejected a distinction between administrative proceedings and judicial or quasi-judicial proceedings. See 52 Am.Jur.2d, Malicious Prosecution § 7, at 191, § 20, at 198 (1970). The relevant issue in this case is what constitutes the institution of proceedings.

The test in Kentucky for instituting (also variously described as “initiating” or “instigating”) proceedings is whether the defendant “sets the machinery of the law in motion_” First Nat’l Bank of Mayfield v. Gardner, 376 S.W.2d 311, 316 (Ky. 1964) (quoting Restatement of Torts (First) § 674 comment a (1938)); accord Seidel v. Greenberg, 108 N.J.Super. 248, 260 A.2d 863, 868 (1969). Plaintiffs correctly note that a wide variety of conduct may constitute the “institution,” “initiation,” or “instigation” of proceedings, both under Kentucky law and the common law generally. See generally Prosser & Keeton, supra § 119, at 871-73.

Plaintiffs do not offer convincing support, nor do we think such exists, for their view that malicious prosecution will lie where a defendant acts in a way that requires the plaintiff to institute proceedings to vindicate his rights. The tort of malicious prosecution is based upon conduct by the defendant that directly results in judicial or quasi-judicial conduct against the plaintiff. Defendants correctly point out that they did not set the machinery of the statute in motion merely by issuing the letters dismissing plaintiffs. The statute and regulations place the burden on employees who are adversely affected to invoke the legal machinery guaranteed by the statutory scheme.⁴ The employer does not file charges against the employee but is merely required to set forth the reasons for the dismissal or suspension in a letter to the employee.⁵ The stated reasons must withstand scrutiny only if the employee invokes the statutory process by requesting a hearing and appealing to the state personnel board and circuit court, if necessary.

The only case cited by plaintiffs that arguably supports their position is Hardy v. Vial, 48 Cal.2d 577, 311 P.2d 494 (1957), which upheld a state employee’s claim for malicious prosecution where the defendants had conspired to file false charges resulting in a disciplinary hearing and dismissal. Hardy does not differ, however, from the ordinary rule that the instigation or actual filing of charges to a proceeding will support a cause of action for malicious prosecution. Here, plaintiffs were effectively dismissed under the statute without the need for charges or any proceeding.

Plaintiffs’ argument would stand the law of malicious prosecution on its head. By plaintiffs’ reasoning, a successfully challenged wrongful dismissal from a job subject to a collective bargaining agreement, for example, would support not only the standard claims against the employer or union or both, but also a claim for malicious prosecution because the employee invoked internal administrative or judicial proceedings for reinstatement or compensation. Similarly, every successful defamation case would support a parallel cause of action for malicious prosecution because the plaintiff is also entitled to institute proceedings to redress injury to his reputation.

Malicious prosecution relates to resort to procedure for abusive purposes. Where a plaintiff complains of other conduct, even conduct requiring the plaintiff to institute proceedings to reverse the effect of a defendant’s conduct, the plaintiff must assert a cause of action premised directly on the underlying conduct.

B.

While it is probative that plaintiffs failed to state a claim for malicious prosecution under Kentucky law, such a finding is not dispositive of their section 1983 claim. As noted above, although state law may be considered to the extent it is not inconsistent with federal law, federal law controls for purposes of characterizing section 1983 claims. Thus, one leading commentator on civil rights litigation has suggested that courts’ discussion of section 1983 malicious prosecution claims misleads because it tends to focus on tort-laden terminology, to the neglect of constitutional analysis. See S. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983, § 3.10, at 154-56 (2d ed. 1986); see also Whitman, Government Responsibility for Constitutional Torts, 85 Mich.L.Rev. 225 (1986) (discussing the inadequacy of traditional tort doctrine to decide section 1983 claims involving conduct by government entities). However, application of federal principles leads to the same conclusion.

The test for substantive due process claims is whether defendants’ conduct “shocks the conscience.” Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). We have previously measured section 1983 malicious prosecution claims by this standard. E.g., Vasquez v. City of Hamtramck, 757 F.2d 771, 773 (6th Cir.1985). Where we have recognized a possible section 1983 claim, the circumstances have uniformly involved situations of arrest, incarceration, or charges of violation of non-traffic laws. See Dunn, supra (malicious prosecution claim following arrest); Lucsik, supra (suggesting incarceration for civil contempt may give rise to section 1983 claim if malice alleged). Also, the courts that have recognized that malicious prosecution may support a section 1983 claim are virtually unanimous in holding that constitutional protection exists only with respect to criminal proceedings and not to civil proceedings. M. Schwartz & J. Kirklin, Section 1983 Litigation: Claims, Defenses and Fees § 3.6, at 50 & n. 6 (1986); see also S. Nahmod, supra, § 3.10, at 155 nn. 181-82 (collecting cases).

In the past, we have declined to recognize a section 1983 claim analogous to malicious prosecution where the plaintiff was never “in danger of imprisonment.” Vasquez, supra, 757 F.2d at 773 (allegation of police harassment for issuance of traffic citations); see also Bacon v. Patera, 772 F.2d 259 (6th Cir.1985) (no substantive constitutional protection against harassment through misuse of state’s prosecutorial machinery, even if loss of employment results). Cf. Garner v. Stephens, 460 F.2d 1144 (6th Cir.1972) (applying Kentucky law) (noteworthy that public employee’s section 1983 action for suspension from employment not treated as analogous to malicious prosecution claim). Even an arrest that will support a state law claim for malicious prosecution will not necessarily rise to the level of a constitutional tort redressable under section 1983. Fiser v. Bowling, 812 F.2d 1406 (6th Cir.1987) (dismissing plaintiff’s section 1983 claim following arrest for driving while intoxicated). As we noted in Dunn, supra, “Neither the Fourteenth Amendment nor 1983 were designed to redress all injuries incurred by reason of unfounded or malicious claims brought in state court actions.” 697 F.2d at 125.

Because plaintiffs were never subjected to the possibility of incarceration, they failed to state a claim for violation of substantive due process. Dismissal simply does not “shock the conscience.” We do not believe Congress intended section 1983 to apply to every claim of dismissal from employment without probable cause, at least where plaintiffs can point to no other invidious reason for their dismissal, such as race or political beliefs or other status or conduct protected by the Constitution or federal statutes.

For the foregoing reasons, we AFFIRM the district court.⁶

1 . Plaintiffs concede that an appeal to the state personnel board was not their only remedy to challenge their dismissal and that they could have claimed violation of the federal civil rights laws at the outset. Nevertheless, plaintiffs argue that they were required to pursue all their state claims before filing in federal court, since only the state personnel board and circuit court could make a determination of whether their dismissal was without probable cause, an element of their section 1983 claim. We reject this argument. It sounds of the ill-fated principle of exhaustion of state remedies. See Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

2 . The district court's judgment dismissing the case asserted that plaintiffs failed to state a claim. Fed.R.Civ.P. 12(b). The technical basis for dismissal was that plaintiffs’ action was barred by the relevant statute of limitations. This suggests that had plaintiffs filed a claim measured from the time of their dismissal, they might have stated a claim. We need not speculate as to whether plaintiffs could have successfully stated some other type of claim had they filed at an earlier date. We ground our decision not on the statute of limitations, but rather on plaintiffs’ failure to state a claim.

3 . Defendants argued to the district court that the relevant date is the date of plaintiffs’ dismissal, while plaintiffs argued for the date the state circuit court affirmed the personnel board.

4 . See Goss v. Personnel Board, 456 S.W.2d 819, 822 (Ky.1970) (noting that it is the discharged employee who "initiates" the proceedings allowed by the statute.)

5 . The regulations use both the words "reasons” and "charges.” Kentucky Supreme Court opinions interpreting the statute make it clear that die words are synonyms. See Goss v. Personnel Board, supra; see also King v. Sermonis, 481 S.W.2d 652 (Ky.1972). Thus, the sometime use of the word "charges” in the regulations does not convert the dismissal letter of the appointing authority (i.e., the employer) into the institution or initiation of legal proceedings.

6 . There is simply no need to discuss election of remedies or claim preclusion, as suggested by the concurring opinion and as discussed in the divided opinion in Punton v. City of Seattle, 805 F.2d 1378 (9th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1954, 95 L.Ed.2d 527 (1987). Plaintiffs here explicitly grounded their section 1983 claim on the fact that “charges and termination proceedings [were] initiated against them without probable cause. The damages and relief sought is the same as in any other malicious prosecution action.” (Plaintiffs’ post-hearing brief, at 2). The argument of plaintiffs’ counsel at the hearing on their appeal, as well as their post-hearing brief discussing Punton, make clear that they do not rely on the operative act of dismissal to state a claim. Their narrowly drawn claim was an obvious effort to avoid pleading an attack on the act of dismissal itself, which would have implicated the Kentucky statute of limitations for personal injury actions, see supra pp. 519-20. We should, and do in the majority opinion, respect the narrowness of plaintiffs’ claim.