Hand v. Gary

• Decision Date: 10 March 1988
• Docket Number: 87-1062,Nos. 86-1875,s. 86-1875
• Citation: 838 F.2d 1420
• Parties: Thomas James HAND, Plaintiff-Appellee, v. Stuart GARY, Individually and In His Official Capacity as Deputy Sheriff, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1420

838 F.2d 1420

Thomas James HAND, Plaintiff-Appellee, v. Stuart GARY, Individually and In His Official Capacity as Deputy Sheriff, Defendant-Appellant.

Nos. 86-1875, 87-1062.

United States Court of Appeals Fifth Circuit.

March 10, 1988.

Charles Louis Roberts, Duane A. Baker, El Paso, Tex., for defendant-appellant.

Edward Tibbetts, Mobile, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before GOLDBERG, POLITZ and DAVIS, Circuit Judges.

GOLDBERG, Circuit Judge:

Thomas James Hand brought this action for damages for malicious prosecution pursuant to 42 U.S.C. Sec. 1983. A jury found Defendant, Deputy Sheriff Stuart Gary, liable for intentional violation of the constitutional rights of Plaintiff Hand. We reverse, concluding that there were no facts on the record to support the jury's conclusion that the actions of defendant were a legal cause of the damage suffered by Plaintiff.

I. Facts

In early 1982, Dick Guest began negotiations with Daniel Atkinson for sale of Guest's disabled 1978 pickup truck. After two meetings, Guest agreed to sell the truck to Atkinson for $2000, on the condition that Atkinson remove a butane tank and a specially designed carburetor from the truck. The $2000 was payable in monthly instalments, following a $100 down payment. Guest and Atkinson executed a title application and filed the application at the courthouse. After paying only $100, and without removing the carburetor and butane tank, Atkinson left the state in the truck.

Guest then filed a complaint in the local court in Van Horn, Texas, alleging unlawful removal of mortgaged property, and called Defendant, Deputy Sheriff Gary. Gary took down this information, listed the vehicle as stolen with the National Crime Investigation Computer (the "NCIC") and referred the matter to the Texas Department of Public Safety. Title, however, never transfered to Atkinson. When the truck was reported stolen, the processing of the application for title stopped.

In March of 1982, Guest received a postcard, postmarked Mobile, Alabama, saying that his truck had been spotted and that any further action would require a $75 payment in advance. Guest then called the phone number on the postcard and reached Plaintiff Hand. Hand told Guest that he had spotted the truck and that he would reveal its location for a fee of $250. Guest told Hand that the truck was stolen and asked him to reveal the location of the truck without charge. Hand refused, saying he didn't "work for free." Guest then contacted Deputy Sheriff Gary about the conversation with Hand. Gary called Hand, told him that the truck was stolen, and had an angry conversation with him over whether Hand would reveal its location.

Gary then contacted Officer Greer of the Texas Department of Public Safety. Officer Greer, recognizing that Mobile, Alabama was outside his jurisdiction, contacted the Federal Bureau of Investigation. The FBI sent Special Agent Beck to investigate.

Agent Beck contacted Guest, who told him that Atkinson had taken the truck out of state without his permission, and that his carburetor and butane tank had been taken as well. Guest agreed to let Agent Beck tape two telephone conversations with Hand. From these conversations, Agent Beck learned that Hand had located the truck and that he steadfastly refused to reveal its location. Agent Beck also learned at this time about the partially consummated sale transaction which occurred before Atkinson disappeared with the truck.

Based on this information, Agent Beck signed a criminal complaint against Hand for concealing the location of stolen property, and referred the matter to the office of the United States Attorney. Agent Beck testified before a grand jury which returned an indictment. The prosecutor's office later withdrew this indictment and a second superseding indictment was obtained. After the superseding indictment, Hand's attorney informed the prosecutor's office that Atkinson had legal title to the pickup and that the truck was not stolen. The prosecutor therefore dismissed the superseding indictment.

After dismissal of the superseding indictment, Mr. Hand brought this action for malicious prosecution pursuant to 42 U.S.C. Sec. 1983, alleging that Guest, Gary, Beck and others had conspired to deprive him of his constitutional rights. Upon learning that he had been sued, Deputy Sheriff Gary called Agent Beck to ask if Beck could do anything to help Gary with the civil suit. Beck responded that Gary would have to hire his own lawyer. Gary may also have inquired about the possibility of reindicting Hand. ¹

Assistant United States attorney McDonald later engaged in further investigation, and determined that title to the truck remained with Guest, and that the truck was indeed stolen. McDonald then sought and obtained a third indictment for concealing stolen property. Hand was tried and acquitted of this criminal charge.

This civil case was tried to a jury before District Judge Lucius D. Bunton in the Western District of Texas. Judge Bunton issued a directed verdict with respect to Beck and the other defendants, but allowed the jury to decide the question of liability with respect to Guest and Gary. Judge Bunton found that the jury's responses to eight special interrogatories supported a judgment of $19,800 against defendant Gary. ² The district court denied Gary's motion for a judgment notwithstanding the verdict and Gary now appeals to this court.

II. Discussion

"The first inquiry in any Sec. 1983 suit ... 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 briefs in this case do not state clearly which specific constitutional rights are at issue. In an answer to Judge Davis's special interrogatory Plaintiff's counsel referred to the action as an action for malicious prosecution. Plaintiff has also alleged facts and cited cases which deal with false arrest. We deal with both constitutional theories, and find that under each theory, for the same reason, Plaintiff failed to prove a constitutional violation.

We are faced with two constitutional questions, both going to the jury's finding of causation: (1) whether Gary, by calling Agent Beck to discuss reindictment after learning of the civil suit violated Plaintiff's constitutional right to be free of bad faith prosecution, Wheeler v. Cosden Oil and Chemical Co., 734 F.2d 254 (5th Cir.), modified on reh'g on other grounds, 744 F.2d 1131, 1133 (5th Cir.1984); and (2) whether Gary, by reporting Guest's truck stolen caused the allegedly false arrest of Hand. Thomas v. Sams, 734 F.2d 185 (5th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985). ³

A. Malicious Prosecution--Use of Criminal Prosecution as Coercion?

Plaintiff alleges that when Gary learned he was being sued for false arrest and malicious prosecution, he attempted to convince federal agents to use criminal prosecution of Hand as leverage in the civil suit. Had Plaintiff demonstrated that Gary succeeded, there is no doubt in our mind that he would have proved a constitutional violation. Unfortunately, his proof failed as a matter of law.

There is a constitutional right to be free of "bad faith prosecution." Federal prosecutors "enjoy absolute immunity for acts taken to initiate prosecution." Rykers v. Alford, 832 F.2d 895, 897 (5th Cir.1987) (citing Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). Bad faith prosecution has, however, been held repeatedly to cause sufficient irreparable harm to support federal injunction of a state prosecution. Dombrowski v. Pfister, 380 U.S. 479, 490, 85 S.Ct. 1116, 1122, 14 L.Ed.2d 22 (1965); Shaw v. Garrison, 467 F.2d 113 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972). Cf. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (suits to enjoin bad faith prosecutions are an exception to the general rule against federal injunction of state court proceedings). In this Circuit bad faith prosecution has been held sufficient to support a damage judgment against state law enforcement officials under 42 U.S.C. Sec. 1983, despite the immunity of the federal prosecutor. Wheeler v. Cosden Oil and Chemical Co., 734 F.2d at 254. ⁴

For the first time, we are called upon to examine a jury finding of liability for malicious prosecution under Sec. 1983. We may not reverse lightly. We may reverse a jury's finding of fact only if "the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict." Boeing Company v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). To engage in such an examination, it is necessary to look carefully at the factual settings that have been held sufficient to survive a motion to dismiss in Dombrowski, Shaw and Wheeler.

In Dombrowski, members of the Southern Conference Educational Fund, Inc. sought an injunction restraining the Governor, police and law enforcement officials of Louisiana from prosecuting them under the Louisiana Subversive Activities and Communist Control Law, and Communist Propaganda Control Law. Initially, plaintiffs were arrested. Later a state judge quashed the arrest warrants as not based on probable cause, and the court granted a motion to suppress evidence seized in an illegal raid of plaintiff's offices. A three judge court was convened to consider the constitutionality of the Louisiana statutes. Soon thereafter a state grand jury was convened. The three judge court issued a temporary restraining order against the prosecutions pending hearing. When the TRO was dissolved by the three judge court, the grand jury returned indictments against the individual appellants. The Supreme Court said,

[Plaintiffs] have attacked the good faith of ...