1997 -NMCA- 66, Johnson v. Weast

• Decision Date: 20 May 1997
• Docket Number: No. 17005,17005
• Citation: 1997 NMCA 66,123 N.M. 470,943 P.2d 117
• Parties: , 1997 -NMCA- 66 Neal JOHNSON and Rosalind Johnson, husband and wife, Plaintiffs-Appellees, v. Bill WEAST, a law enforcement officer with the Pharmacy Board, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 117

943 P.2d 117

123 N.M. 470, 1997 -NMCA- 66

Neal JOHNSON and Rosalind Johnson, husband and wife, Plaintiffs-Appellees, v. Bill WEAST, a law enforcement officer with the Pharmacy

Board, Defendant-Appellant.

No. 17005.

Court of Appeals of New Mexico.

May 20, 1997.

Certiorari Denied July 3, 1997.

[123 N.M. 471] Tom Udall, Attorney General, Joan M. Waters, Assistant Attorney General, Albuquerque, for Defendant-Appellant.

Phillip P. Baca, Kenneth R. Wagner & Associates, P.A., Albuquerque, for Plaintiffs-Appellees.

OPINION

BOSSON, Judge.

¶1 Defendant Bill Weast appeals a jury verdict of $375,000 awarded for violation of Plaintiff's civil rights pursuant to 42 U.S.C. § 1983 (1994). Plaintiff contends Defendant was responsible for his wrongful arrest resulting in a violation of the Fourth Amendment right to be free from unreasonable search and seizure. We hold that Plaintiff neither stated nor proved a claim against Defendant for violation of rights secured to him by the Fourth Amendment. Accordingly, we reverse the verdict.

BACKGROUND

¶2 Defendant was a drug inspector for the New Mexico Board of Pharmacy and a pharmacist. In September of 1988, Plaintiff, owner and registered pharmacist, called the Board of Pharmacy and spoke to Defendant requesting that the Board investigate what Plaintiff suspected were forged prescriptions. Over the next several months, Defendant reviewed Plaintiff's prescription records looking for forgeries. Plaintiff fully cooperated with Defendant in the investigation. Defendant confirmed 150 forged prescriptions for the drugs Preludin, Dilaudid, and Percodan which he included in his report dated July 10, 1989. Defendant presented a number of photo arrays to Plaintiff who was able to identify thirteen individuals who had passed forged prescriptions. Defendant took this information to Assistant District Attorney Lally (the ADA). Because of the number of forged prescriptions, the ADA expressed some concern that Plaintiff might also be involved in criminal activity. The ADA asked Defendant for more information about Plaintiff's possible complicity in filling the forged prescriptions and requested a written report.

¶3 After further investigation, Defendant prepared a report containing all the information he had gathered, including each of the forged prescriptions, statements from doctors regarding the lack of authenticity of the prescriptions, and pricing information which showed that the price charged for the forged prescriptions was substantially higher than the market price, thereby indicating a possible motive for Plaintiff's involvement in a criminal scheme. The report observed in several instances that Plaintiff had filled prescriptions for both Preludin and Dilaudid for the same patient, and further noted that Defendant, as an experienced pharmacist, had never seen these drugs prescribed together for the same individual. The report named Plaintiff as a target of an investigation and concluded that the case remain "open pending further investigation"; it did not charge Plaintiff with any crime or violation, nor did it request an arrest or indictment.

¶4 Defendant's report was drafted on a standard Pharmacy Board form entitled "Investigation Report." The report identified Plaintiff as subject of the investigation and Defendant as complainant and author of the report. Although under state law Defendant had the power to make an arrest, he made no effort to place Plaintiff under arrest or file a criminal complaint against him. See NMSA 1978, § 61-11-6(N) (Repl.Pamp.1996) (inspectors for Board of Pharmacy shall be pharmacists and have all the powers and duties of peace officers). Defendant was acting in his capacity as an inspector when his report was turned over to the ADA who then used the information to obtain a grand jury indictment against Plaintiff. Defendant was called to testify before the grand jury, which subsequently indicted Plaintiff on a number of drug-related charges. Based on the indictment Plaintiff was arrested. All charges against Plaintiff were later dismissed after a district court suppressed evidence obtained during the investigation.

¶5 Plaintiff then filed suit against Defendant and the ADA under 42 U.S.C. § 1983, the federal Civil Rights Act, alleging in part unlawful arrest, unlawful search and seizure, and violation of procedural due process. The claims against the ADA were dismissed by the district court on grounds of prosecutorial immunity, and this Court affirmed that dismissal. See Johnson v. Lally, 118 N.M. 795, 801-02, 887 P.2d 1262, 1268-69 (Ct.App.1994). Plaintiff proceeded against Defendant alone.

¶6 Before trial, all counts against Defendant were dismissed with prejudice except the claim of unlawful seizure, which alleged that Defendant had caused Plaintiff to be seized unreasonably in violation of his rights under the Fourth Amendment. As indicated by the jury instructions, Plaintiff had two theories for this claim: (1) that Defendant initiated criminal proceedings without probable cause against Plaintiff for unlawfully filling forged prescriptions, and (2) that Defendant made statements to the grand jury with reckless disregard for the truth or omitted facts critical to a finding of probable cause which caused Plaintiff to be arrested without probable cause. The jury determined in a special verdict that Defendant did not have probable cause to initiate criminal proceedings against Plaintiff and therefore found for Plaintiff. The jury found for Defendant on the second theory when it determined that Defendant had not made false statements to, or omitted material facts from, the grand jury.

DISCUSSION

¶7 We are concerned on this appeal with only the first basis for Plaintiff's claim. Plaintiff presented his case to the jury on the theory that Defendant "wrongfully caused" Plaintiff's arrest by: (1) wrongfully initiating criminal proceedings without probable cause, (2) which, in turn, resulted in a grand jury indictment, and (3) which then led to his unreasonable seizure upon arrest. The legal question we must resolve is whether submitting an investigatory report in this manner, and with these consequences, violated any of Plaintiff's rights under the Fourth Amendment.

¶8 "The first inquiry in any Section 1983 suit, therefore, is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws.' " Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). The precise theory of Plaintiff's case, how he was "deprived of a right secured by the Constitution," is not clear. In his briefs and at oral argument before this Court, Plaintiff relied on legal authorities which discuss a Section 1983 claim based on an unconstitutional arrest without probable cause. However, Defendant made no arrest of Plaintiff at any time. On the other hand, the facts of this case together with the jury instructions suggest a constitutional claim for malicious prosecution, although that does not appear to have been the theory presented to the jury. We examine both theories and conclude that under either theory Plaintiff did not prove a violation of a constitutional right to give rise to liability under Section 1983 on the part of Defendant.

Unconstitutional Arrest

¶9 Plaintiff relies heavily on Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), in which the United States Supreme Court held that a police officer could be sued under Section 1983 for a violation of the Fourth Amendment unless the officer had an objectively reasonable belief that his affidavit in support of an arrest warrant was sufficient to establish probable cause. Malley, 475 U.S. at 344, 106 S.Ct. at 1097. The Supreme Court declined to grant the officer absolute immunity, even though a magistrate had made an independent determination that probable cause existed to issue the warrant. Id. Plaintiff draws an analogy between the police officer in Malley submitting an affidavit to a magistrate and Defendant submitting his report to the ADA; following this analysis Plaintiff would require Defendant to have probable cause in the same manner as the officer in Malley.

¶10 We do not find the analogy persuasive. The police officer is actively seeking an arrest which must be supported by probable cause. Whether the officer arrests the suspect on the spot, or proceeds through the process of securing an arrest warrant, an officer is held to the standard of probable cause. An inspector, on the other hand, is not making or soliciting an arrest; he is investigating and reporting, perhaps with a recommendation, to some other official whose role is to decide whether sufficient probable cause exists to pursue a warrant and support an arrest.

¶11 Nothing in Malley places a duty upon Defendant to satisfy a standard of probable cause with respect to this report. Such a duty might arise if Defendant had arrested Plaintiff pursuant to Section 61-11-6(N) or had taken his report to a magistrate, filled out an affidavit based upon the report, secured an arrest warrant, and then arrested Defendant or caused his arrest by others. If Defendant had misrepresented information to, or withheld evidence from, the district attorney or the grand jury in an effort to obtain an indictment, and if that information would have altered the probable cause determination, that action could have subjected Plaintiff to a "seizure" without probable cause which would therefore be unreasonable within the meaning of the Fourth Amendment. See Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir.1996); Hand v. Gary, 838 F.2d 1420, 1427-28 (5th Cir.1988); Smiddy v. Varney, 665 F.2d 261, 266-67 (9th Cir.1981). But once Plaintiff lost that part of his claim before the jury, he fell outside the only persuasive analogy to Malley.

¶12 Plaintiff also relies, to no avail, on Arnott v. Mataya, 995 F.2d 121, 124 n. 4 (8th Cir.1993) and Mitchell v. City of Hartford, 674 F.Supp. 60, 64 n. 4 (D.C...