                            NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                       MAR 27 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

ROSS FRATZKE and DEBORA
FRATZKE,                                      No. 16-35874

           Plaintiffs-Appellants              D.C. No. 9:14-cv-00274

v.                                            MEMORANDUM*

MONTANA FISH, WILDLIFE, AND
PARKS; THOMAS CHIANELLI,
Game Warden; BARBARA HARRIS;
BRYON MILLER,

           Defendants-Appellees.


                   Appeal from the United States District Court
                            for the District of Montana
                Dana L. Christensen, Chief District Judge, Presiding

                             Submitted March 8, 2018**
                                Seattle, Washington




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                          1
Before: RAWLINSON and CHRISTEN, Circuit Judges, and FREUDENTHAL,***
Chief District Judge

      A criminal prosecution of Ross and Debora Fratzke (“the Fratzkes”) for theft

by insurance fraud and game violations underlies this civil case. The criminal case

concluded with dismissal of the alleged game violations and a hung jury on the

alleged insurance fraud. After the criminal case concluded, the Fratzkes filed a

civil case, which the district court concluded against them by summary judgment.

The Fratzkes now appeal the district court’s grant of summary judgment

dismissing their § 1983 malicious prosecution claim against Game Warden

Thomas Chianelli (“Chianelli”) who investigated the alleged game violations, their

§ 1983 malicious prosecution claim against Defendant Barbara Harris who

prosecuted the underlying criminal case, and a state law malicious prosecution

claim against Byron Miller, a former employee who provided much of the

information against the Fratzkes. We have jurisdiction under 28 U.S.C. § 1291,

and we review de novo. Folkens v. Wyland Worldwide, LLC, 882 F.3d 768, 773

(9th Cir. 2018). We affirm.

      A claim of malicious prosecution under §1983 requires pleading tortious

conduct by the defendant under the elements of a state law malicious prosecution



      ***
             The Honorable Nancy D. Freudenthal, Chief United States District
Judge for the District of Wyoming, sitting by designation.

                                        2
claim, as well as alleging that the defendant acted under color of state law and for

the purpose of denying the plaintiff a specific constitutional right. Poppell v. City

of San Diego, 149 F.3d 951, 961 (9th Cir. 1998). For a malicious prosecution

action in Montana, “the plaintiff bears the burden of proving that (1) a judicial

proceeding was commenced against the plaintiff; (2) the defendant was responsible

for instigating, prosecuting, or continuing a judicial proceeding; (3) there was a

lack of probable cause for the defendant’s acts; (4) the defendant was actuated by

malice; (5) the judicial proceeding terminated favorably for the plaintiff; and (6)

the plaintiff suffered damage.” Spoja v. White, 317 P.3d 153, 156 (Mont. 2014)

(citations and internal quotation marks omitted).

      1.     The district court did not err by concluding that Chianelli simply

conducted the investigation required by state law, and passed the information along

to the Sanders County Attorney’s Office, who ultimately provided it to Harris.

“When a defendant acts upon a statutory duty and provides information to the

proper authorities, who then file criminal charges, that defendant is not liable for

‘instigating’ criminal proceedings.” White v. State ex rel. Mont. State Fund, 305

P.3d 795, 804 (Mont. 2013) (citation omitted). Moreover, the Fratzkes present no

evidence creating a genuine dispute that Chianelli acted with malice or an intent to

deprive them of a constitutional right. Thus, the district court properly concluded




                                         3
Chianelli did not “instigate” the criminal proceedings and granted summary

judgment.

      2.    The district court did not err in granting summary judgment against

the Fratzkes on their § 1983 claim against Harris. As prosecutor, Harris simply

received, selected and presented investigative information provided to her by

others, without vouching as to its truth. Harris’ affidavit expressly stated, “based

on information and belief, that investigative information developed and provided to

her by . . . [the] Deputy Sheriff, and Tom Chianelli, . . . demonstrates probable

cause to believe that [the Fratzkes] committed the offenses charged.” That conduct

alone does not convert Harris into a complaining witness.1         Thus, Harris is

protected by absolute immunity and the district court properly granted summary

judgment on the Fratzkes’ claim against Harris. See Kalina v. Fletcher, 522 U.S.

118, 129 (1997).

      3.    The district court did not err in granting summary judgment against

the Fratzkes on their state law claim for malicious prosecution against defendant

Miller. Miller provided information to investigators and the investigators listed

various steps taken to corroborate the information.      Supplying information is

insufficient to find Miller instigated the criminal proceeding. Further, the state


1
 These facts are distinguishable from those presented in Cruz v. Kauai County,
279 F.3d 1064 (9th Cir. 2002). The prosecutor in Cruz functioned as a witness
under the circumstances of the ex parte proceeding in that case. Id. at 1068.
                                         4
court denied the Fratzkes’ pretrial motion to dismiss the criminal charges based on

the lack of probable cause. Based on these undisputed facts, there are no issues

requiring adjudication at trial as to “instigation” or probable cause, and the district

court properly granted summary judgment as to the Fratzkes’ claim against Miller.

AFFIRMED.




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