McMaster v. Cabinet for Human Resources

• Citation: 824 F.2d 518
• Decision Date: 29 July 1987
• Docket Number: No. 86-5606,86-5606
• Parties: Roger McMASTER, et al., Plaintiffs-Appellants, v. CABINET FOR HUMAN RESOURCES, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 518

824 F.2d 518

Roger McMASTER, et al., Plaintiffs-Appellants, v. CABINET FOR HUMAN RESOURCES, et al., Defendants-Appellees.

No. 86-5606.

United States Court of Appeals, Sixth Circuit.

Argued April 2, 1987.

Decided July 29, 1987.

Kenneth L. Sales, argued, Sales, Isenberg, Sales, Stewart, and Cutler, Louisville, Ky., for plaintiffs-appellants.

Daniel F. Egbers, argued, Cabinet for Human Resources, Frankfort, Ky., for defendants-appellees.

Before WELLFORD and NELSON, Circuit Judges, and COHN, District Judge. ^*

COHN, District Judge.

I.

This is an action pursuant to 42 U.S.C. Secs. 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. Sec. 18A.095; 101 Ky.Admin.Reg. 1:120 Secs. 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 Sec. 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. Sec. 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 preclusive 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 Sec. 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 Sec. 7, at 191, Sec. 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) Sec. 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 Sec. 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...