Anthony v. Baker, Civ. A. No. 82-B-1025.

• Decision Date: 10 December 1992
• Docket Number: Civ. A. No. 82-B-1025.
• Citation: 808 F. Supp. 1523
• Parties: Robert C. ANTHONY, Plaintiff, v. Daniel G. BAKER, Defendant.
• Court: U.S. District Court — District of Colorado

808 F. Supp. 1523

Robert C. ANTHONY, Plaintiff, v. Daniel G. BAKER, Defendant.

Civ. A. No. 82-B-1025.

United States District Court, D. Colorado.

December 10, 1992.

COPYRIGHT MATERIAL OMITTED

Elvin L. Gentry, Colorado Springs, CO, for plaintiff.

Phillip A. Vaglica, Kathleen A. Carlson, Vaglica & Carlson, Colorado Springs, CO, for defendant.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Plaintiff moves for a new trial contending that three jury instructions were given in error and the verdict was against the weight of the evidence. The issues are adequately briefed and oral argument will not materially aid their resolution. I conclude that the challenged jury instructions are not erroneous or misleading and the verdict was not against the weight of the evidence. Therefore, plaintiff's motion is denied.

This case has a long history. Originally filed in 1982, it has been to the Tenth Circuit and back twice. Anthony v. Baker, 767 F.2d 657 (10th Cir.1985), (Anthony I); Anthony v. Baker, 955 F.2d 1395 (10th Cir.1992), (Anthony II). The facts of the action are extensively set out in Anthony I and need not be repeated here. Anthony I, 767 F.2d at 659-62.

Trial of plaintiff's remaining 42 U.S.C. § 1983 malicious prosecution claim commenced on July 30, 1992 and continued for two weeks. On August 10, 1992, the jury returned a verdict for defendant. Plaintiff now brings this motion for a new trial under Fed.R.Civ.P. 59(a) contending that Instructions 12, 13, and 16 were erroneous statements of the law and misleading to the jury. (These instructions are attached to this order as Appendix A). Plaintiff also claims that the verdict was against the great weight of the evidence.

Rule 59(a) provides that a new trial may be granted "for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Generally, courts do not grant new trials unless it is reasonably clear that prejudicial error has crept into the record or substantial justice has not been done. See, 11 Wright & Miller, Federal Practice and Procedure, § 2803 (1973). A new trial motion may raise errors of law arising out of the giving or refusal of jury instructions. Id. at § 2805, ("Any error of law, if prejudicial, is good ground for a new trial"). Further, courts will grant new trials where, having given full respect to the jury's findings and viewing the entire evidence, the trial judge is left with the "definite and firm conviction" that a mistake has been committed. See, e.g., Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir. 1987). The decision whether to grant a new trial rests within the sound discretion of the district court. Beacham v. Lee-Norse, 714 F.2d 1010 (10th Cir.1983).

I.

Plaintiff's objections to Instructions 12 and 13 both relate to the definition of and the defenses to a § 1983 claim of malicious prosecution. Therefore, I will first review the nature and elements of this claim before addressing plaintiff's specific allegations of error.

Tenth Circuit authority on the nature and elements of this claim is cryptic at best. The court starts from the baseline proposition that § 1983 was not intended to constitutionalize every state law tort in which a government official plays some part. Norton v. Liddel, 620 F.2d 1375, 1378 (10th Cir.1980).

We do not believe that the Fourteenth Amendment or the Civil Rights Act were designed to redress injuries incurred by reason of unfounded or malicious claims/ suits brought in state court, where adequate state remedies are available to the aggrieved parties. Nevertheless, if misuse of the legal procedure is so egregious as to subject the aggrieved individual to a deprivation of constitutional dimensions, and the tortfeasor is acting under color of state law, § 1983 may be employed.

Id. Four years later, the court revisited this issue in Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1431 (10th Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 65, 88 L.Ed.2d 53 (1985), saying "We believe that when private parties or public officials use criminal complaints to coerce a release of civil liability from injured persons, this action, as a malicious prosecution, is egregious and qualifies as a deprivation of due process that violates the Fourteenth Amendment."

In Anthony I, the court held that state officers are liable under § 1983 when they conspire to procure groundless state indictments and charges based upon fabricated evidence or false, distorted, or perjurious testimony presented to official bodies in order to maliciously bring about a citizen's trial or conviction. Anthony I, 767 F.2d at 662. I glean from these cases that a plaintiff must prove the elements of the state law tort of malicious prosecution and egregious conduct in order for this type of conduct to rise to the level of a constitutional deprivation. The claim, then, is one for "egregious malicious prosecution." See, Torres v. Superintendent of Police of Puerto Rico, 893 F.2d 404, 408-10 (1st Cir.1990), (To impose liability under § 1983, a plaintiff must prove both the elements of malicious prosecution under state law and that the conduct is egregious or conscience shocking).

Under Colorado law, the tort of malicious prosecution has six elements: (1) a criminal case was brought; (2) the criminal case was brought as a result of statements made by the defendant; (3) the criminal case ended in the plaintiff's favor; (4) the defendant's statements against the plaintiff were made without probable cause; (5) the defendant was motivated by malice towards the plaintiff; and, (6) the plaintiff incurred damages. CJI-Civ.3d 17:1 (1989). The existence of probable cause is a complete defense. B & K Distrib. Co. v. Drake Bldg. Corp., 654 P.2d 324, 327 (Colo.App.1982).

The Restatement (Second) of Torts § 653 provides a slightly different formulation of this tort:

A private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged is subject to liability for malicious prosecution if

(a) he initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and

(b) the proceedings have terminated in favor of the accused.

In drafting Instruction 12, I combined elements of CJI-Civ.3d 17:1 and § 653 of the Restatement, and defined the term egregious to best conform to the facts of this case in light of the above Tenth and First Circuit authority.

Plaintiff first objects to Instruction 12 because it did not include in the fourth element the terms "encouraged" and "perpetuated" along with "procures" or "initiates" as alternative ways a defendant's conduct could result in liability. However, plaintiff confuses the elements of his § 1983 claim with the definition of a "complaining witness" in the context of determining absolute immunity as set out in Anthony II. There, the court held that a police officer may be a complaining witness, and thus not entitled to immunity, if he "encouraged" or "perpetuated" a prosecution. Anthony II, 955 F.2d at 1402. Plaintiff cites no other authority for including these terms in the instruction defining the elements of his claim, and I know of none. Moreover, plaintiff does not explain, and I cannot see how, this purported error prejudiced his case.

Second, plaintiff claims that Instruction 12 "did not adequately instruct the jury that the Defendant could be found liable if his conduct so tainted the probable cause findings that the Plaintiff was deprived of his right to a fair determination of probable cause." However, this concept necessarily collapses into and, thus, is encompassed within the elements of Instruction 12. If defendant tainted the state probable cause determinations with his allegedly fabricated or distorted evidence, the jury could have properly found that he "initiated or procured" the prosecution. Further, if defendant so tainted the state probable cause determinations, the jury could have properly found that his conduct was egregious. See, Anthony I, 767 F.2d at 663, ("A jury could find that Baker's participation in the investigation and Grand Jury proceedings so tainted the proceedings as to constitute `egregious conduct' and deny him his due process rights to a probable cause determination"). This was simply a matter for argument to the jury in light of the evidence admitted at trial.

Lastly, plaintiff contends that the definition of the word "egregious" is inadequate and confusing. However, to the extent that the term requires definition apart from its plain meaning, I conclude that Instruction 12 adequately defines the term, particularly in the context of plaintiff's claim.

Therefore, I hold that Instruction 12 accurately and clearly states the applicable law and plaintiff's objections do not warrant a new trial.

As to Instruction 13, plaintiff argues that probable cause was not an issue for the jury's consideration. In support, plaintiff relies exclusively on an isolated statement from Anthony I: "Baker's assertion that `numerous determinations of probable cause by the state grand jury and state trial judge ... are conclusive evidence of the existence of probable cause' begs the question." Anthony I, 767 F.2d at 663. In light of the evidence admitted at trial the question begged is one of fact, not law. Here, the prior state determinations of probable cause cannot be conclusive as to the existence of probable cause because the prior determinations were allegedly tainted by defendant. Such assertion begs the precise fact question presented by plaintiff's claim — Did Baker maliciously procure a groundless state indictment by presenting fabricated and distorted evidence to the grand jury and state trial judge? The Anthony I court did not say, as plaintiff would have me believe, that the existence of probable cause is never a jury question.

The existence of...