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26 TCRP LRD 58 A claim for malicious abuse of process exists against ââa defen- dant who (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.ââ337 In Marshall, supra, the plaintiff did not present âany evidence that the officers had an âimproper motive or pursued a collateral purpose outside the legitimate ends of process;ââ thus, the court granted the defendantsâ motion for a summary judg- ment on Marshallâs claim for malicious abuse of process.338 However, in contrast to a malicious prosecution claim, for which an element of proof is that there was an absence of proba- ble cause, a claim for malicious abuse of process does not require proof that probable cause was lacking.339 Thus, in Gutierrez v. Mass. Transp. Auth.,340 supra, the court held that a finding that there was probable cause was not relevant to an abuse of process claim.341 [T]here was enough evidence for the jury to conclude that the defen- dant officers sought to initiate proceedings against the plaintiffs for an improper purpose. ⦠The jury could infer that the officersâ reports intentionally exaggerated the gravity of the situation so that the pros- ecutor would be more likely to press charges. Probable cause at the time of the arrest does not equate necessarily with subjective good faith in filling out an arrest report at a later time. By the time the arrest reports were being prepared, the officers were aware of the extent of Daniellaâs injuries, and the desire to see the plaintiffs prosecuted could be interpreted as a preemptive maneuver in anticipation of tort and civil rights claims.342 The court reversed and remanded the case for a new trial on the plaintiff âs claim for abuse of process.343 In another case, Pottinger v. Miami,344 a class action alleg- ing, inter alia, that the City of Miami had routinely seized and destroyed the plaintiffsâ personal property, one of the plaintiffsâ claims was for malicious abuse of process. The plaintiffs alleged âthat the City, through its police department, has used its legiti- mate arrest process for the unlawful purpose of harassing and intimidating homeless individuals to purge them from streets and parks.â345 A malicious abuse of process claim is tenable when a âprosecution is initiated legitimately but is thereafter used for a purpose other than that intended by the law.â346 Nevertheless, in Pottinger, the court held that, even if the city used the arrest process to harass and disperse the home- less, the cityâs âulterior purpose alone is an insufficient basis for an abuse of process claimâ¦.â347 Rather, â[s]ome definite act or 337 Marshall, 2020 U.S. Dist. LEXIS 172567, at *21-22 (citation omitted). 338 Id. at *22 (citation omitted). 339 Pottinger, 810 F. Supp. at 1566 (citations omitted). 340 437 Mass. 396, 772 N.E.2d 552 (Mass. Sup. Jud. Ct. 2002). 341 Id., 437 Mass. at 407-408, 772 N.E.2d at 563. 342 Id., 437 Mass. at 408, 772 N.E.2d at 563 (emphasis supplied). 343 Id., 437 Mass. at 409, 772 N.E.2d at 564. 344 810 F. Supp. 1551 (S.D. Fla. 1992). 345 Id. at 1565 (footnote omitted). 346 Id. (citations omitted) (footnote omitted). 347 Id. at 1568. VIII. LIABILITY UNDER THE FOURTH AMENDMENT IN § 1983 ACTIONS FOR MALICIOUS PROSECUTION OR ABUSE OF PROCESS A. Elements of a § 1983 Action for Malicious Prosecution A § 1983 claim for malicious prosecution requires a plain- tiff to prove that the defendant initiated or continued a criminal proceeding against the plaintiff for which there was no prob- able cause; that actual malice motivated the defendantâs actions; and that the criminal proceeding terminated in the plaintiff âs favor.331 In Kirk, supra, the court stated that a § 1983 action also requires proof of another elementââthe existence of a post- arraignment deprivation of liberty rising to the level of a Fourth Amendment violation.â332 A § 1983 case for malicious prosecution may be viable when evidence emerges later that probable cause was lacking, yet the police and/or the prosecutor continued to pursue the criminal case. In Moroughan, the court stated that [i]n cases where the police had probable cause to arrest, in order to succeed on a malicious prosecution claim, a plaintiff must show that âauthorities became aware of exculpatory evidence between the time of the arrest and the subsequent prosecution that would undermine the probable cause which supported the arrest.â333 In Figueroa v. Miami-Dade County,334 supra, the court ruled that Officer Huerta was entitled to a summary judgment on the plaintiff âs § 1983 claim for malicious prosecution. A claim for malicious prosecution requires a plaintiff to âprove the elements of the common law tort of malicious prosecution and a viola- tion of his Fourth Amendment right to be free from unreason- able seizures.â335 There was no evidence that Officer Huerta was involved in the State Attorneyâs officeâs decision to prosecute Huerta.336 B. Elements of a § 1983 Action for Malicious Abuse of Process In a § 1983 action for malicious abuse of process, a plain- tiff must prove that legal process was used for an ulterior or illegitimate purpose that resulted in an injury to the plaintiff. 331 Moroughan, 514 F. Supp.3d at 522. See also, Marshall, 2020 U.S. Dist. LEXIS 172567, at *1, 15, 16 (citations omitted) (stating that for Marshallâs claim for malicious prosecution against Officers Mathews and Gallaher under § 1983 and New York law, Marshall had âto demon- strate: â(i) the commencement or continuation of a criminal proceeding against [him]; (ii) the termination of the proceeding in [his] favor; (iii) that there was no probable cause for the proceeding; and (iv) that the proceeding was instituted with malice,ââ as well as âdemonstrate a post- arraignment deprivation of liberty sufficient to implicate his Fourth Amendment rightsâ) (citations omitted). 332 Kirk, 2001 U.S. Dist. LEXIS 2786, at *43 (citations omitted). 333 Moroughan, 514 F. Supp.3d at 524 (citations omitted). 334 2012 U.S. Dist. LEXIS 78809, at *1 (S.D. Fla. 2012). 335 Id. at *14-15 (citation omitted). 336 Id. at *15. See also, Laster, 2006 U.S. Dist. LEXIS 10359, at *11.