Further, as to such a claim even if based on alleged constitutional violations, the Eighth Circuit has expressed its doubts but has left open the possibility of a malicious prosecution claim under § 1983, as either a Fourth Amendment violation of a substantive right or a procedural due process violation, where plaintiffs have alleged an underlying cognizable constitutional violation. See, e.g., Bates v. Hadden, 576 Fed. Appx. 636, 639 (8th Cir. 2014); Harrington v. City of Council Bluffs, Ia., 678 F.3d 676, 679 (8th Cir. 2012) ("If malicious prosecution is a constitutional violation at all, it probably arises under the Fourth Amendment."); Kurtz, 245 F.3d at 758; Gunderson v. Schlueter, 904 F.2d 407, 409 (8th Cir. 1990) (finding the plaintiff's malicious prosecution claim may be taken as a claim for the violation of procedural due process rights or substantive due process rights). To the extent Mr. Murray intends to assert malicious prosecution as a state law claim, he fails to do so on the undisputed record evidence before the Court.
Defendant Nikolov therefore is entitled to qualified immunity on Count Two in as much as it alleges a violation of the Fourth Amendment. Harrington, 678 F.3d at 681; Bates v. Hadden, 576 Fed.Appx. 636, 639 (8th Cir. 2014) (per curiam) (concluding officer was entitled to qualified immunity on malicious prosecution claim under the Fourth Amendment where officer was alleged to have initiated a false criminal complaint that resulted in the plaintiff spending nearly five months in jail); Jones v. Custer Cnty., 8:17-cv-00394-LSC, 2018 WL 2050568, at *7 (D. Neb. Apr. 26, 2018), aff'd sub nom. Jones v. Bowers, 784 Fed.Appx. 976 (8th Cir. 2019) (per curiam) (concluding that existing precedent had not placed the question of whether or when malicious prosecution violates the Fourth Amendment beyond debate within the Eighth Circuit); Busby v. Lohmar, 4:14-cv-1365-CDP, 2016 WL 145763, at *4-5 (E.D. Mo. Jan. 12, 2016) (finding qualified immunity shielded officers from claim of malicious prosecution whether under the Fourth Amendment or a due process theory because the state of the law surrounding the cognizability of such
Despite Defendant's suggestion to the contrary, a close reading of Kurtz reveals the Eighth Circuit did not foreclose completely a § 1983 claim based upon malicious or wrongful (i.e., unconstitutional) prosecution. See Robinson v. Norling, 25 F.4th 1061, 1063 (8th Cir. 2022) (affirming dismissal of malicious-prosecution claim under § 1983 where “[w]hatever ‘more' is required, [plaintiff] does not provide it”); Joseph v. Allen, 712 F.3d 1222, 1228 (8th Cir. 2013) (“an allegation of malicious prosecution without more cannot sustain a civil rights claim under § 1983”); Kohl, 5 F.3d at 1145 (holding “a claim of malicious prosecution, without more, does not state a claim under 42 U.S.C. § 1983, which provides redress only for federal constitutional or statutory violations”); see also Bates v. Hadden, 576 Fed.Appx. 636, 639 (8th Cir. 2014) (recognizing in prior Eighth Circuit cases, the court of appeals has “specifically declined to decide whether a Fourth Amendment right against malicious prosecution exists”) (emphasis in original) (citing Harrington v. City of Council Bluffs, Iowa, 678 F.3d 676, 680 (8th Cir. 2012)). Indeed, the Eighth Circuit has held a § 1983 claim where a plaintiff was prosecuted without probable cause, “even if labeled a claim of malicious prosecution, ” is properly analyzed under the Fourth Amendment.
Collins, Hodges, and Ellis are entitled to qualified immunity on that claim, however, because Rose's constitutional right against malicious prosecution was not clearly established when he was arrested in 2013. Harrington v. City of Council Bluffs, lozva, 678 F.3d 676, 680-81 (8th Cir. 2012); see also Bates v. Hadden, 576 Fed.Appx. 636, 639 (8th Cir. 2014) (unpublished persuasive authority). The officers are entitled to qualified immunity on this record in any event. Rose has presented no evidence from which a reasonable juror could find that Ellis, Hodges, or Collins set in motion the charges against Rose without arguable probable cause.
(quoting Albright v. Oliver, 510 U.S. 266, 270-71 & n.4 (1994)); but see Bates v. Hadden, 576 Fed. App'x 636, 639 (8th Cir. 2014) (“In a pair of 2001 decisions, we observed that malicious prosecution is not a constitutional injury.
However, the Court has left open the possibility of a malicious prosecution claim under § 1983, as either a Fourth Amendment violation of a substantive right or a procedural due process violation, where plaintiffs have alleged an underlying cognizable constitutional violation. See, e.g., Bates v. Hadden, 576 Fed.Appx. 636, 639 (8th Cir. 2014); Harrington v. City of Council Bluffs, Ia., 9 678 F.3d 767, 679 (8th Cir. 2012) (“If malicious prosecution is a constitutional violation at all, it probably arises under the Fourth Amendment.”).
In Stewart, the Eighth Circuit held that "a § 1983 plaintiff's claim that he was arrested or prosecuted without probable cause, even if labeled a claim of malicious prosecution, 'must be judged' under the Fourth Amendment, not substantive due process." Id. (quoting Albright v. Oliver, 510 U.S. 266, 270-71 & n.4 (1994)); but see Bates v. Hadden, 576 Fed. App'x 636, 639 (8th Cir. 2014) ("In a pair of 2001 decisions, we observed that malicious prosecution is not a constitutional injury. As recently as 2012, we expressed uncertainty as to whether 'malicious prosecution is a constitutional violation at all.'" (quoting Harrington v. City of Council Bluffs, Ia., 678 F.3d 676, 679 (8th Cir. 2012) (internal citations omitted)); Harrington, 678 F.3d at 679 ("If malicious prosecution is a constitutional violation at all, it probably arises under the Fourth Amendment.").
In Stewart, the Eighth Circuit held that "a § 1983 plaintiff's claim that he was arrested or prosecuted without probable cause, even if labeled a claim of malicious prosecution, 'must be judged' under the Fourth Amendment, not substantive due process." Id. (quoting Albright v. Oliver, 510 U.S. 266, 270-71 & n.4 (1994)); but see Bates v. Hadden, 576 Fed. App'x 636, 639 (8th Cir. 2014) ("In a pair of 2001 decisions, we observed that malicious prosecution is not a constitutional injury. As recently as 2012, we expressed uncertainty as to whether 'malicious prosecution is a constitutional violation at all.'" (quoting Harrington v. City of Council Bluffs, Ia., 678 F.3d 676, 679 (8th Cir. 2012) (internal citations omitted)); Harrington, 678 F.3d at 679 ("If malicious prosecution is a constitutional violation at all, it probably arises under the Fourth Amendment.").
But the Eighth Circuit Court of Appeals has repeatedly stated that it is not likely to recognize a § 1983 claim for malicious prosecution, despite that most of its sister circuits do so. See Bates v. Hadden, 576 F. App'x 636, 639 (8th Cir. 2014) (noting that "malicious prosecution is not a constitutional injury"); see also Albright v. Oliver, 510 U.S. 266, 270 n.4 (1994) (noting "the extent to which a claim of malicious prosecution is actionable under § 1983 is one 'on which there is an embarrassing diversity of judicial opinion'") (quoting Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992)). The Court will not deviate from the Eighth Circuit Court of Appeals' position on the viability of malicious-prosecution claims under § 1983, and this claim is dismissed with prejudice.
That is, "No ‘reasonable officials acting in [Officer Boyd's] position would ... have understood they were violating’ [Boyd's] constitutional right against malicious prosecution because no such constitutional right had been clearly established." SeeBates v. Hadden , 576 F. App'x 636, 639 (8th Cir. 2014) (citing Harrington , 678 F.3d at 680 ). The Court grants Boyd's Motion for Summary Judgment on Watson's malicious prosecution claim.