Ware v. U.S.

Decision Date21 July 1997
Docket NumberNo. 93-1172-CIV-T-17C.,No. 93-1173-CIV-T-17C.,93-1172-CIV-T-17C.,93-1173-CIV-T-17C.
Citation971 F.Supp. 1442
PartiesFrank Andre WARE, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Middle District of Florida

Mina Jane Morgan, Mitcham, Weed, Barbas, Allen & Morgan, Tampa, FL, Anthony P. Gauthier, Thomas Patrick Howard, Law, Weathers & Richardson, Grand Rapids, MI, for Frank Andre Ware.

Whitney L. Schmidt and Steven Nisbitt, Asst. U.S. Atty., U.S. Attorney's Office, Middle District of Florida, Tampa, FL, for U.S.



This civil action was tried before the Court, sitting without a jury, for approximately nine (9) days in October, 1996. The plaintiff, FRANK ANDRE WARE (hereinafter Ware), a former criminal defendant who was acquitted of federal drug charges, sued the defendant, UNITED STATES OF AMERICA (hereinafter the Government), for malicious continuation of prosecution under the Federal Tort Claims Act (hereinafter FTCA). As orally directed by the Court, the parties have submitted, in writing, their closing arguments,1 proposed findings of fact and conclusions of law,2 certain evidentiary objections,3 and other unresolved matters,4 including the Government's motion to dismiss for lack of subject matter jurisdiction5 and all properly preserved motions and objections at trial. For the reasons expressed in this Order, the Court finds in favor of the Government.

I. Administrative Claims.

1. On March 15,1991, Ware submitted two (2) administrative claims stemming from his criminal prosecution, one each to, respectively, the Federal Bureau of Investigations (hereinafter FBI) and the U.S. Attorney's Office located in Tampa, Florida. Both agencies denied the claims. Ware submitted two (2) more administrative claims on February 3 and June 13 of 1992, one each to, respectively, the U.S. Attorney in Tampa, Florida, and the FBI in Boston, Massachusetts. With regard to the June 13 administrative claim, Plaintiff's Exhibit No. 5, a three (3) page document, Ware complained that an FBI Agent, Clifford Hedges, "intentionally, purposefully, and vindictively withheld the [results of an FBI fingerprint test] ... for the express purpose of hindering and prejudicing [Ware's] defense...." Ware sought $50,000,000.00 in damages because "[t]he actions of Agent Cliff Hedges were the proximate [sic] cause of [Ware] being wrongfully convicted, and the proximate cause of [Ware] having to suffer false imprisonment, mental anguish, psychological trauma, and humiliating and degrading loss of reputation, and loss of life's pleasures." Ware did not specifically employ the phrase "malicious prosecution" or "malicious continuation of prosecution" in any of his administrative claims.6 Both the February and June claims were denied by the receiving agency.

II. Judicial Proceedings in Michigan.

2. After his first two (2) administrative claims were denied, Ware commenced this action in the Western District of Michigan, Southern7 Division, by filing a "Civil Rights Complaint with Jury Demand" on July 1, 1992. (Case No. 4:92-CV-98, Docket No. 1). Proceeding pro se and in forma pauperis (Docket No. 2), Ware sued: (1) the Attorney General of the United States (hereinafter AG), then William P. Barr, in his official capacity; (2) Assistant United States Attorney (hereinafter AUSA) Dennis Moore, in his official and individual capacities; (3) Special FBI Agent Cliff Hedges, in his official and individual capacities; and (4) Mr. George Pedrolini (hereinafter Pedrolini), Ware's criminal co-defendant, in his individual capacity. Ware alleged a variety of constitutional and statutory civil rights violations and sought at least fifty (50) million dollars ($50,000,000.00) in damages.8

3. Within five (5) months of filing his complaint, Ware retained trial counsel (Docket No. 10) and shortly thereafter voluntarily dismissed his claims, without prejudice, against AG Barr and AUSA Moore, in all listed capacities, and Agent Hedges, in only his official capacity (Docket No. 26). Thus, at this point in time, Case Number 4:92-CV-98 retained Ware's claims against Agent Hedges and Pedrolini in their individual capacities.

4. On March 12, 1993,9 Ware commenced a new action, 4:93-CV-21, by filing an amended complaint with jury demand (Docket No. 34). In the amended complaint, which superseded the original complaint in 4:92-CV-98, Ware asserted claims against the Government, FBI Agent Hedges in his individual capacity, and Pedrolini. Unlike the original complaint, the amended complaint contained separate and distinct counts: (1) negligence, defamation, malicious continuation of prosecution, and false imprisonment against the Government pursuant to the FTCA, Count I; (2) conspiracy to deprive Ware of certain constitutional rights against Agent Hedges and Pedrolini pursuant to 42 U.S.C. § 1985(3), Count II; and (3) constitutional violations committed under color of federal authority against Agent Hedges pursuant to Bivens v. 6 Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), Count III. By court order, Pedrolini was dismissed without prejudice from both civil actions because of Ware's failure to timely serve him. (Docket No. 41).

5. Once his cases were consolidated in Michigan, Ware sought a jury trial for Counts II and III against Agent Hedges and a bench trial for Count I against the Government.10 However, in July 1993, Ware's case moved from Michigan to Florida. As to Counts II and III, the Honorable Richard A. Enslen, U.S. District Judge, granted Agent Hedges' motion to dismiss for improper venue because, under 28 U.S.C. § 1391(b)(2), there was no substantial relationship between plaintiff's claims and the Western District of Michigan. As to Count I, Judge Enslen granted the Government's motion under 28 U.S.C. § 1404(a) and transferred Ware's consolidated civil actions to the Middle District of Florida, Tampa Division. (Docket Nos. 60-61).

III. Judicial Proceedings before this Court.

6. Upon receiving what was left of Ware's consolidated cases from Michigan, the Clerk of this Court issued them two (2) consecutive case numbers, 93-1172-CIV-T-17C and 93-1173-CIV-T-17C. However, because one (1) amended complaint controlled both cases, this Court ordered that they be consolidated into the lower case number. (Docket No. 63).

7. Substantively, this Court narrowed Ware's six (6) causes of action within Count I down to two (2). First, at the motion to dismiss stage, the Court dismissed Ware's negligence and defamation claims within Count I.11 Ware v. United States, 838 F.Supp. 1561 (M.D.Fla.1993) (Docket No. 89). The Court held, inter alia, that it had no subject matter jurisdiction over the negligence claim because Ware failed to exhaust his administrative remedies. The Court reasoned that Ware failed to allege negligence in his administrative claim.

8. Although the Court granted the Government's motion to dismiss Ware's negligence and defamation claims, it denied the motion as to Ware's malicious continuation of prosecution and false imprisonment claims. However, the Court held that Ware could only rely upon the acts or omissions of Agent Hedges, not AUSA Moore, in his FTCA claim against the Government.

9. The Government did not argue that Ware failed to exhaust his administrative remedies with regard to any other claim within Count I, including malicious continuation of prosecution. Rather, it pursued this exhaustion argument only with regard to negligence. (Docket No. 79, p.17 n. 8). In fact, the Government filed a twelve (12) page motion to reconsider the Court's denial of the Government's motion to dismiss Ware's malicious continuation of prosecution and false imprisonment claims. (Docket No. 92). Again, the Government advanced no exhaustion argument, and the Court denied the motion for reconsideration on substantive grounds.12 Ware v. United States, 1994 WL 34173 (M.D.Fla. Feb. 2, 1994) (Docket No. 99).

10. Counts II and III of Ware's amended complaint — dismissed for improper venue by Judge Enslen — were revived by this Court when it granted Ware's motion to amend his amended complaint. Ware v. United States, 152 F.R.D. 225 (M.D.Fla.1993) (Docket No. 88). Accordingly, Ware filed a second, and final, amended complaint on December 3, 1993 (Docket No. 94), which both the Government (Docket No. 106) and Agent Hedges (Docket No. 137) answered.

11. These counts, however, did not survive for long. This Court granted Agent Hedges' motion to dismiss Count II for failure to state a claim under 42 U.S.C. § 1985(3). Ware v. Barr, United States Attorney General, 883 F.Supp. 654 (M.D.Fla. 1995) (Docket No. 152). With regard to Count III, the Bivens action against Agent Hedges in his individual capacity, this Court declined to grant Agent Hedges qualified immunity due to the unresolved issues of fact.13

12. Agent Hedges took an interlocutory appeal of this ruling to the United States Court of Appeals for the Eleventh Circuit. In a per curiam unpublished opinion, the circuit court reversed this Court's ruling on the qualified immunity issue and directed it to enter judgment in favor of Agent Hedges. (Docket No. 160). The circuit court held that "the relevant case law did not clearly establish that the negative fingerprint crime-lab report constituted Brady material in the circumstances of this case." As such, Agent Hedges was no longer a party to this action.

13. The only remaining portion of Ware's second amended complaint (Docket No. 94) for trial was Count I against the Government. Although Ware could have tried both his malicious continuation of prosecution and false imprisonment claims, he chose to pursue only the former and surrendered the latter. (Docket No. 183).


The Court has duly reviewed and considered: (1) the undisputed portions of the...

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