Opinion
Case No. 2:03CV0332 PGC.
June 4, 2004
ORDER GRANTING IN PART MOTION TO DISMISS
This civil rights action came to the court on a motion by defendants to dismiss the complaint for failure to state a claim upon which relief can be granted. Because the complaint, with regard to malicious prosecution, fails to state a viable claim, the motion to dismiss is GRANTED in part and DENIED in part.
BACKGROUND
When analyzing a motion to dismiss, the court views the facts in the light most favorable to the non-moving party. On April 10, 1999, Richard Sergi experienced a psychotic episode and telephoned for police assistance. When police arrived, Mr. Sergi fired several rounds into the ceiling of his home. He was arrested and charged with attempted murder based on the statements submitted by the police. Those statements, however, did not include the statement of Deputy Terry, who was the alleged target of Mr. Sergi's shooting. Nevertheless, as a negotiated solution of the attempted murder charge, Mr. Sergi plead guilty to a lesser charge of aggravated assault. After pleading guilty, Mr. Sergi sought to withdraw the plea, but the court rejected that request; the state court has not yet heard his appeal on this issue.
Harris v. Owens, 264 F.3d 1282, 1288 (10th Cir. 2001).
ANALYSIS
In this court, Mr. Sergi appears to raise four claims in his complaint: (1) the police arrested him without probable cause; (2) the police conducted an incompetent investigation; (3) the police assisted in filing a baseless charge against him; and (4) the state court should be required to hear his post-conviction relief petition. The defendants have moved to dismiss the complaint in its entirety, but their memorandum only addresses the third issue: malicious prosecution.
A claim that police officers are responsible for initiating criminal proceedings without probable cause is a claim of malicious prosecution. A malicious prosecution claim is actionable under the Fourth Amendment violation, but state law provides the starting point for this constitutional claim. In Utah, malicious prosecution occurs when "(1) defendants initiated or procured the initiation of criminal proceedings against an innocent plaintiff; (2) defendants did not have probable cause to initiate the prosecution; (3) defendants initiated the proceedings primarily for a purpose other than that of bringing an offender to justice; and (4) the proceedings terminated in favor of the accused." Therefore, under prong four, in order for a malicious prosecution claim to be successful under § 1983, the prior criminal proceeding must first be terminated in favor of the defendant before a court is allowed to analyze the merits of the § 1983 violation. Mr. Sergi's claim fails because that state proceeding has not terminated in his favor, and his conviction is still intact.
See Pierce v. Gilchrist, 359 F.3d 1279, 1291-1292 (10th Cir. 2004); Taylor v. Meacham, 82 F.3d 1556, 1556 (10th Cir. 1996); Robinson v. Maruffi, 895 F.2d 649, 654 (10th Cir. 1990); Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988).
Taylor, 82 F.3d at 1556.
Erikson v. Pawnee County Bd. of County Comm'rs, 263 F.3d 1151, 1155 (10th Cir. 2001).
Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1244 (10th Cir. 2003) (citing Hodges v. Gibson Prods. Co., 811 P.2d 151, 156 (Utah 1991)).
See e.g., Pierce, 359 F.3d at 1294; Vanover v. Cook, 260 F.3d 1182, 1190 (10th Cir. 2001); Laurino v. Tate, 220 F.3d 1213, 1217 (10th Cir. 2000); Heck v. Humphrey, 512 U.S. 477, 484 (1994); Mendoza v. K-Mart, Inc., 587 F.2d 1052, 1057 (10th Cir. 1978).
While the court agrees that Mr. Sergi's malicious prosecution claim should be dismissed, it notes that the defendants do not appear to have directly addressed Mr. Sergi's other three claims: (1) that the police arrested him without probable cause, (2) that the police conducted an incompetent investigation, and (3) that the state court should be required to hear his post conviction relief petition. Although the court believes these issues may well be ripe for dismissal as well, the defendants only challenged the prosecutorial misconduct claim. Therefore, this court will only dismiss Mr. Sergi's third claim of malicious prosecution. If the other causes of actions are without merit, the court invites the defendants to submit briefs supporting their dismissal.
CONCLUSION
Accordingly, defendant's motion to dismiss the complaint in its entirety (#30-1) is GRANTED in part and DENIED in part.
SO ORDERED.