                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                         F I L E D
                       Revised December 29, 2003
                                                                        December 5, 2003
                IN THE UNITED STATES COURT OF APPEALS
                                                                     Charles R. Fulbruge III
                           FOR THE FIFTH CIRCUIT                             Clerk



                                  No. 00-50591


ALFRED CASTELLANO,

                                                     Plaintiff-Appellee,

                                     versus

CHRIS FRAGOZO, Etc.; ET AL,
                                                     Defendants,

CHRIS FRAGOZO, Individually and in his
Official Capacity as a San Antonio Police Officer;
MARIA SANCHEZ, Individually,
                                        Defendants-Appellants.




            Appeals from the United States District Court
                  for the Western District of Texas



Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,
STEWART, DENNIS, CLEMENT, and PRADO, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     Today we examine our uncertain law attending a claim of

malicious prosecution with its undisciplined mix of constitutional

and state    tort   law.     We    decide     that    “malicious    prosecution”

standing alone is no violation of the United States Constitution,

and that to proceed under 42 U.S.C. § 1983 such a claim must rest

upon a denial of rights secured under federal and not state law.
     Alfred Castellano sought damages for his wrongful conviction

of arson, asserting claims under the First, Fourth, Fifth, Sixth,

Eighth, and Fourteenth Amendments.            Before trial the magistrate

judge concluded that alleging the elements of malicious prosecution

under    Texas    law   stated   a   claim,   but   only   under   the   Fourth

Amendment.        The trial judge passed over defendants’ claim of

absolute immunity, accepting their argument that the Supreme Court

in Albright v. Oliver1 held that if there is an adequate state tort

remedy there can be no claim for a denial of due process, and

dismissed all claims under any other constitutional provision.

With the Texas law of malicious prosecution now the source for his

§ 1983 claim, Castellano amended his complaint, dropping his state

law claim.       A jury returned a substantial award of money damages.

     We conclude that the trial court’s reading of Albright, while

clinging to the law of this circuit, simultaneously misread both

the Fourth and Fourteenth Amendments.               As for the Fourteenth

Amendment claims, we reject the trial court ruling that there was

no denial of due process, either in its primitive form that § 1983

cannot sustain such a claim, or because the state provides a post-

deprivation tort remedy.         We hold that a state’s manufacturing of

evidence and knowing use of that evidence along with perjured

testimony to obtain a wrongful conviction deprives a defendant of

his long recognized right to a fair trial secured by the Due


     1
         510 U.S. 266, 271 (1994).

                                        2
Process Clause, a deprivation of a right not reached by the

Parratt2 doctrine.     At the same time, we note that Castellano faces

obstacles in pursuing his wrongful conviction claims on remand

given that Sanchez and Fragozo enjoy absolute immunity for their

testimony at trial and have substantial arguments that their

manufacturing of evidence could not have created, without the trial

testimony, a wrongful conviction.

     Given    that   the   district   court   dismissed   the   Fourteenth

Amendment    claims,   albeit   erroneously,    the   verdict   cannot   be

sustained on the Fourth Amendment alone since it rests in part on

events at trial - events not protected by the Fourth Amendment.          It

is not possible to separate the damages awarded for violations of

the Fourth Amendment from those awarded for wrongful conviction.

Nor can we sustain the verdict because the jury effectively decided

the Fourteenth Amendment claim.

     We begin by reciting the history of the case.        We then examine

the development of malicious prosecution as a claim under § 1983 –

including the contours of the state law tort, its early development

as a federal claim in this circuit, as well as the impact of

Albright v. Oliver3 on this circuit’s precedent.          After examining

our own law, we turn to the law of other circuits and conclude that

“malicious prosecution” standing alone is no violation of the


     2
         Parratt v. Taylor, 451 U.S. 527 (1981).
     3
         510 U.S. 266 (1994).

                                      3
United States Constitution.       We then return to the case at hand,

and in doing so we examine Albright, finding no support there for

the magistrate judge’s ruling that by using the elements of the

state tort of malicious prosecution, Castellano’s full claim could

be tethered to the Fourth Amendment.         We conclude by finding that

the verdict cannot be sustained and that the case must be remanded

for a new trial.

                                     I

                                     1

     All of this stems from a case drawn from the entangled lives

of Alfred Castellano, Maria Sanchez, a trusted employee, and Chris

Fragozo, a City of San Antonio police officer who did security work

for Castellano’s chain of fast order restaurants around the city of

San Antonio called Fred’s Fish Fry.           Castellano worked for his

father in starting the business, primarily offering fried catfish

and chicken to go.      There were three stores when his father died

and eighteen on October 31, 1984, when one of the restaurants,

Number   7,   burned.    By   this   time,   Castellano’s   business   was

prospering and he held a prominent citizen’s position on the Fire

and Police Civil Service Commission, hearing appeals of police

personnel from decisions of the Chief of Police.

     Officer Castro, a veteran police officer and member of the

Arson    Squad,   quickly     determined     that   the   fire   had   been

intentionally set and was an “inside job.”          That it was arson has



                                     4
never been an issue.    The investigation led to Castellano, largely

on the testimony of Maria Sanchez and a tape recording she produced

with a recorder supplied by Fragozo.

     Castro and his partner took the case to the District Attorney,

who prepared and, along with Castro, signed an affidavit.    Castro

presented the affidavit to a magistrate judge who issued an arrest

warrant.   Castro arrested Castellano, taking him to the police

station.   He was released a few hours later after being booked and

facing an array of cameras. A later examining trial found probable

cause to proceed.      A grand jury indictment and trial followed.

Castellano was convicted in a prominent jury trial by a state court

jury in San Antonio and sentenced to five years probation.

     Throughout Castellano denied involvement in the arson.     His

story was that he fired Maria when she refused to take a polygraph,

a company policy when money was missing; that Maria and Fragozo

were lovers; and that he had refused to give Fragozo a copy of a

police examination Fragozo had to pass for promotion.        Maria’s

story was that Castellano had sought her help in the arson and she

taped conversations with him to protect herself if he did burn the

restaurant.

     In 1993, on his third habeas attempt, the Texas Court of

Criminal Appeals set aside the conviction and remanded the case to

the trial court. The District Attorney then dismissed the case for

“lack of sufficient evidence,” a predictable outcome given the



                                  5
findings of the state habeas judge adopted by the Texas Court of

Criminal Appeals.

     The findings included:

     Chris Fragozo, a police officer with the City of San
     Antonio, attempted to enlist Clemencia Jiminez as a
     witness against Applicant and aided Maria Sanchez in
     altering the tape recordings offered into evidence. The
     tapes were altered to appear that the Applicant was
     admitting to the arson when in fact he had no knowledge
     of its commission.

     Maria Sanchez and Chris Fragozo collaborated together and
     without their testimony and the altered tapes, there is
     insufficient evidence to sustain a finding of guilt in
     this case.4

     Following the dismissal of charges, Castellano filed suit in

the District Court of the 288th Judicial District, Bexar County,

Texas,    against   Sanchez,   Fragozo   and    Castro,   in   both   their

individual and official capacities, and the City of San Antonio.

Castellano claimed in this § 1983 suit that defendants were guilty

of malicious prosecution and had denied him rights secured by the

First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.

     The case was removed to federal court and referred to a

magistrate judge, where it was mired in pretrial proceedings over

the next six years.      During these proceedings, all defendants,

except    Castro,   Sanchez,   and   Fragozo,   were   dismissed.     And,

critically, the magistrate judge’s focus was upon the elements of

the Texas law of malicious prosecution as sufficient to state a


     4
         Ex parte Castellano, 863 S.W.2d 476, 479 (Tex. Crim. App.
1993).

                                     6
constitutional violation with little examination of particular

violation beyond the conclusion that “malicious prosecution” could

proceed only under the Fourth Amendment – but not the Fourteenth.

This view simultaneously took out the Fourteenth Amendment and

overlooked the limits of the Fourth, as we will explain.   The case

was tried to a seven-person jury, which returned a verdict awarding

$3,000,000 in compensatory damages and $500,000 in punitive damages

against Sanchez and Fragozo while exonerating Officer Castro.    A

divided panel of this court upheld the judgment entered on the

verdict, and en banc review was granted.

                                   2

     The civil trial was a retrial of the criminal case.   In large

terms the jury was asked to decide whether Castellano was an

arsonist or reasonably believed to be so, or rather, whether he was

the victim of a conspiracy between Sanchez and Fragozo, joined by

Castro, an ambitious cop.    The jury plainly was persuaded that

Castellano was the victim of Sanchez and Fragozo, but not Castro.

     With only the Fourth Amendment claim left in the case, the

trial court instructed the jury:

     Castellano claims that Alfred Castro and Chris Fragozo,
     while acting under color of law, intentionally violated
     his constitutional right to due process by maliciously
     prosecuting him for the criminal offense of arson.
     Castellano further claims that Maria Sanchez, as an
     individual,    intentionally    violated    the    same
     constitutional right.

The jury was told that Castellano must prove that



                                   7
      [t]he defendants caused or commenced or aided a criminal
      proceeding against him; the defendants acted without
      probable cause; the criminal action terminated in his
      favor; he was innocent of arson; the defendants acted
      with malice by prosecuting him for arson; [and] he was
      damaged by the criminal proceeding.

                                      3

      Fragozo and Sanchez argue here that the judgment against them

rests on an impermissible blend of state tort and constitutional

rights and that Castellano at best has only a Fourth Amendment

claim.

      Castellano urges that all damages flow from the initial

wrongful arrest and seizure in violation of the Fourth Amendment,

a theory of recovery not forbidden by Albright; and that all of his

claims under the First, Sixth, Eighth, and Fourteenth Amendments

were dismissed at the urging of the defendants who did not object

to the jury charge, and thus they cannot complain that the trial

itself reintroduced Castellano’s due process claims, claims that

were properly before the jury.        As we will explain, we agree that

the   trial   court’s   instructions       were   erroneous,   although   in

conformity    with   existing   law   of    the   circuit.     Contrary   to

defendants’ contentions, the error was in not allowing the jury to

consider fully the claim of wrongful conviction by extruding it

through the Fourth Amendment.

                                      II

                                      1




                                      8
     We have been inexact in explaining the elements of a claim for

malicious prosecution brought under the congressional grant of the

right of suit under 42 U.S.C. § 1983.      We are not alone.   Other

circuits have been facing similar difficulties and share with us a

common shortcoming – either not demanding that this genre of claims

identify specific constitutional deprivations or struggling in

their efforts to do so.   This laxness has tolerated claims in which

specific constitutional violations are often embedded, but float

unspecified, undefined, and hence unconfined inside a general claim

of malicious prosecution.     Its characteristic weak discipline has

permitted the blending of state tort and constitutional principles,

inattentive to whether the court is adopting state law as federal

law in a process of federal common law decision-making, such as

detailing remedial responses to a constitutional deprivation, or

whether the court is creating a freestanding constitutional right

to be free of malicious prosecution.      On examination, the latter

appears to rest on a perception that the sum of elements borrowed

from state tort law by some synergism is a constitutional right

itself – in its best light, that the elements of the state law tort

of   malicious   prosecution,    when   proved,   inevitably   entail

constitutional deprivation.     While sometimes this is so, it is not

inevitable, and the price of cutting the tether from constitutional

text is too great to permit it to continue.

     We are persuaded that we must return to basics.    And in doing

so we conclude that no such freestanding constitutional right to be

                                   9
free from malicious prosecution exists.                   This conclusion in turn

means that we must insist on clarity in the identity of the

constitutional violations asserted.                  In this effort, we first look

at the state law tort of malicious prosecution and then look to the

enforcement     of   constitutional        protections       enjoyed   by   persons

accused of crimes, all as informed by the decision of the Supreme

Court in Albright v. Oliver.5

                                          2

     Despite frequent use of the term “malicious prosecution” to

describe a wide range of events attending a filing of criminal

charges and even continuing through trials, the tort of malicious

prosecution has a relatively narrow and widely accepted definition.

     The tort of malicious prosecution of criminal proceedings
     occurs when one citizen initiates or procures the
     initiation of criminal proceedings against an innocent
     person, for an improper purpose and without probable
     cause therefor, if the proceedings terminate favorably
     for the person thus prosecuted.6

It signifies that initiation of charges without probable cause lies

at the heart of this definition, one that is deployed by state

courts throughout the country, including Texas.7

                                          3




     5
         510 U.S. 266 (1994).
     6
         FOWLER V. HARPER   ET AL.,   THE LAW   OF   TORTS § 4.1 (3d ed. 1996).
     7
      See Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517-18
(Tex. 1997).

                                          10
     In Shaw v. Garrison, we recognized a “federal right to be free

from bad faith prosecutions” without elaborating on the source of

that right.8      Twelve years later we held in Wheeler v. Cosden Oil

& Chemical Co. that “the Fourteenth Amendment imposes a duty on

state     prosecutors      to   charge    only   upon   ascertaining   probable

cause.”9     Judge Gee’s opinion, thoughtful as it was, proved to be

a wrong turn – one quickly flagged but which nonetheless stood

until Albright, ten years later. Wheeler’s requirement of probable

cause to initiate gave common footing to a right secured by the

Fourteenth Amendment to be free of charges initiated without

probable cause and the identical duty imposed by the classic common

law tort of malicious prosecution. The ability of the Wheeler

holding     to   survive    Supreme      Court   scrutiny   was   questioned   in

Brummett v. Camble because it was based on an implied right rather

than a “more textual footing.”10           But the Brummett opinion ventured

that a malicious prosecution claim based on the infringement of a

specific constitutional guarantee would survive review.11                 Other

pre-Albright cases recognized that claims of false arrest, false

imprisonment, and malicious prosecution could implicate Fourteenth

and Fourth Amendment rights “when the individual complains of an


     8
          467 F.2d 113, 120 (5th Cir. 1972).
     9
          734 F.2d 254, 260 (5th Cir. 1984).
     10
          946 F.2d 1178, 1181 n.2 (5th Cir. 1991).
     11
          Id.

                                          11
arrest, detention, and prosecution without probable cause.”12        None

of this court’s pre-Albright decisions achieved a fit between a

claim of malicious prosecution and claims under the Constitution,

including the Fourth Amendment.         The Supreme Court in Albright v.

Oliver13 defined a starting point.

                                    4

     Albright alleged that Officer Oliver instituted a baseless

charge against him and gave misleading testimony at a preliminary

hearing.14      The state court found probable cause to try Albright,

but the charges were dismissed prior to trial.15           Albright sued

under § 1983 claiming the officer “deprived him of substantive due

process under the Fourteenth Amendment – his ‘liberty interest’ –

to be free from criminal prosecution except upon probable cause.”16

     Chief      Justice   Rehnquist’s    plurality   opinion,   joined   by

Justices O’Connor, Scalia, and Ginsberg, held that “it is the

Fourth Amendment, and not substantive due process” under which

Albright’s claim must be judged.17       The plurality reasoned that the


     12
        Thomas v. Kipperman, 846 F.2d 1009, 1011 (5th Cir. 1988);
see also Sanders v. English, 950 F.2d 1152, 1159 (5th Cir. 1992)
(same).
     13
          510 U.S. 266 (1994).
     14
          Id. at 269.
     15
          Id.
     16
          Id.
     17
          Id. at 271.

                                    12
Fourth Amendment addresses concerns of pretrial deprivations of

liberty, and “[w]here a particular Amendment ‘provides an explicit

textual source of constitutional protection’ against a particular

sort    of    government   behavior,      ‘that    Amendment,      not    the   more

generalized notion of ‘substantive due process,’ must be the guide

for analyzing these claims.’”18           Noting that Albright’s claim was

not for a violation of procedural due process or a violation of

Fourth Amendment rights, the Court dismissed it and expressed no

view    on    whether    his     claim   would    succeed      under    the   Fourth

Amendment.19

       Justices Souter and Scalia each wrote separately to emphasize

differences with the plurality, but each agreed that there was no

need to look beyond the Fourth Amendment in Albright’s case.20

Justice Ginsburg’s separate opinion explained that the Fourth

Amendment prohibition on unreasonable seizures could extend to

post-arraignment        travel    restrictions     such   as    those    placed   on

Albright, and thus a Fourth Amendment claim would not accrue until

the charges against Albright were dismissed.21




       18
       Id. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)).
       19
            Id. at 271, 275.
       20
        Id. at 286-89 (Souter, J., concurring); id. at 275-76
(Scalia, J., concurring).
       21
            Id. at 277-81 (Ginsburg, J., concurring).

                                         13
       Justice Kennedy, joined by Justice Thomas, agreed that the

Fourth Amendment applied to claims of unreasonable seizures, but

felt    that    Albright’s    claim      was   for     the   instigation   of   the

prosecution, not any resulting seizure.22 He stated that while “due

process requirements for criminal proceedings do not include a

standard for the initiation of a criminal prosecution,” the “Due

Process Clause protects interests other than the interest in

freedom from physical restraint.”23            Assuming arguendo that some of

these interests protected by the Due Process Clause include those

protected      by   the   common   law   of    torts    (such   as   freedom    from

malicious prosecution), Kennedy stated that “our precedents make

clear that a state actor’s random and unauthorized deprivation of

that interest cannot be challenged under [§ 1983] so long as the

State provides an adequate postdeprivation remedy.”24                      Kennedy

concluded that because the state provides a cause of action for

malicious prosecution, a § 1983 claim is barred under the holding

of Parratt.25       Where a state did not provide a tort remedy for



       22
            Id. at 281 (Kennedy, J., concurring).
       23
            Id. at 283.
       24
       Id. at 284 (citing Parratt v. Taylor, 451 U.S. 527, 535-544
(1981)).
       25
        Id. at 285-86.     Justice Stevens took issue with this
interpretation of Parratt in his dissent, arguing that Parratt only
applies to those torts which any person could commit, and “its
rationale does not apply to officially authorized deprivations of
liberty or property.” Id. at 313 (Stevens, J., dissenting).

                                         14
malicious prosecution “there would be force to the argument that

the    malicious    initiation       of    a    baseless   criminal   prosecution

infringes an interest protected by the Due Process Clause and

enforceable under § 1983.”26

                                            5

       A series of our post-Albright decisions evolved into the rule

articulated in Gordy v. Burns,27 the decision the panel majority

found to be controlling.28               Gordy holds that “the rule in this

circuit is that the elements of the state-law tort of malicious

prosecution and the elements of the constitutional tort of ‘Fourth

Amendment malicious prosecution’ are coextensive.”29                  Furthermore,

“a    plaintiff    in     a   §   1983    malicious   prosecution     action   need

establish only the elements of common-law malicious prosecution. .

. . [C]ourts must look to the elements of a malicious prosecution

claim under the law of the state where the offense was committed.”30

       This holding is the result of persisting uncertainties in

precedent accumulating over time.               Judge Barksdale’s dissent from

the panel majority observes that the post-Albright cases failed to



       26
            Id. at 286 (Kennedy, J., concurring).
       27
            294 F.3d 722 (5th Cir. 2002).
       28
            Castellano v. Fragozo, 311 F.3d 689, 698-99 (5th Cir. 2002).
       29
       Gordy, 294 F.3d at 725 (citing Piazza v. Mayne, 217 F.3d
239, 245 (5th Cir. 2000)).
       30
            Id. at 726.

                                           15
distinguish our prior precedent which relied on the Fourteenth

Amendment, a position his dissent urges Albright called into

question.31   We add that many of the recent cases fail to note the

qualifying    language   of    earlier       decisions,    which       state    that

malicious prosecution claims implicate the Fourth and Fourteenth

Amendments “‘when the individual complains of an arrest, detention,

and prosecution without probable cause.’”32               As we will explain,

Albright did not speak to the Fourteenth Amendment beyond eschewing

reliance upon substantive due process to create a requirement of

probable cause to initiate a prosecution, albeit a holding that

drained Wheeler of precedential force.

     To look forward, we first look back to find the trace to Gordy

that will inform our effort to chart a new path.                 Gordy relied on

Piazza,33   acknowledging     that    we    assumed    without       deciding   that

satisfying     the   Texas    state    law     elements        was    sufficient.34

Similarly, Gordy relied on Evans,35 which in turn cites Brummett for


     31
        See Castellano,        311    F.3d     at     722-24    (Barksdale,      J.,
dissenting).
     32
       Id. at 722 (quoting Sanders v. English, 950 F.2d 1152, 1159
(5th Cir. 1992)).
     33
          See Gordy, 294 F.3d at 725.
     34
        See Piazza v. Mayne, 217 F.3d 239, 245 (5th Cir. 2000)
(“Piazza asserts on appeal (and Mayne does not dispute) that the
requirements of the state law tort and the constitutional tort are
the same. Thus, we assume without deciding that the requirements
are coextensive in the context of a § 1983 action.”).
     35
          See Gordy, 294 F.3d at 725.

                                       16
the holding that “malicious prosecution may be a constitutional

violation,    but    only    if    all    of     its   common   law   elements   are

established.”36      Yet Brummett made clear that “the federal courts

have repeatedly held that common law and state tort law do not

define the scope of liability under § 1983.”37                        The court in

Brummett    did   look      to    the    common    law    elements    of   malicious

prosecution, and out of concern that plaintiffs would relitigate

state convictions in federal court, adopted the common law element

that the plaintiff show proof of favorable termination of the

prosecution.38      Similar concerns led the Supreme Court to adopt an

analogous element as well.39            Brummett did not, however, hold that

all common law tort elements were required for a federal claim.

     Finally,       Gordy    relied      on     Kerr.40    Kerr   states     without

explanation that the elements for a § 1983 claim of malicious


     36
       Evans v. Ball, 168 F.3d 856, 863 n.9 (5th Cir. 1999) (citing
Brummett v. Camble, 946 F.2d 1178, 1183 (5th Cir. 1991)).
     37
          Brummett, 946 F.2d at 1183.
     38
          Id. at 1183-84.
     39
       See Heck v. Humphrey, 512 U.S. 477, 484-87 (1994) (holding
that “in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's
issuance of a writ of habeas corpus”).
     40
       See Gordy, 294 F.3d at 725 (citing Kerr v. Lyford, 171 F.3d
330 (5th Cir. 1999)).

                                           17
prosecution are those of Texas state law, citing Hayter v. City of

Mount Vernon.41 Hayter cites Taylor v. Gregg,42 which relies in turn

on Brown v. United States.43   As the Gordy opinion notes, Brown was

a Federal Tort Claims Act case, and the FTCA requires the court to

look to the law of the place where the alleged tort occurred.44         In

none of the opinions that ultimately rely on Brown did we explain

why the requirements of the FTCA should dictate the elements of a

§ 1983 claim.

     With hindsight, our precedent governing § 1983 malicious

prosecution claims is a mix of misstatements and omissions which

leads to the inconsistencies and difficulties astutely pointed to

in Judge Barksdale’s dissent from the panel opinion and Judge

Jones’s special concurrence in Kerr.45       We are not alone in this

drift.     Other circuits have traveled uneven paths as well, and

numerous approaches have developed after Albright.

                                    6




     41
       Kerr, 171 F.3d at 340 (citing Hayter, 154 F.3d 269, 275 (5th
Cir. 1998)).
     42
       See Hayter, 154 F.3d at 275 (citing Taylor, 36 F.3d 453, 455
(5th Cir. 1994)).
     43
       Taylor, 36 F.3d at 455 (citing Brown, 653 F.2d 196, 198 (5th
Cir. 1981)).
     44
          See Gordy, 294 F.3d at 726 n.3.
     45
        See Kerr,     171   F.3d   at   342-43   (Jones,   J.,   specially
concurring).

                                   18
      Our sister circuits take two broad approaches to malicious

prosecution claims under § 1983.         The first is to require proof of

all common law elements of malicious prosecution, usually based on

the law of the state where the offense occurred, as well as proof

of a constitutional violation – an approach adopted in various

forms by the First, Second, Third, Ninth, and Tenth Circuits.46 The

second approach views malicious prosecution as unenforceable under

§ 1983, looking to the common law elements of the tort only as

needed     to   assist   the    enforcement   of   analogous   constitutional

violations - seizures under the Fourth Amendment, for example.

This is the view of the Fourth, Seventh, and Eleventh Circuits.47

The approach of the Sixth Circuit is not clear, as it also has

conflicting precedents and has yet to articulate the elements of a

§   1983    malicious    prosecution    claim.48     Similarly,   the    Eighth

Circuit’s       approach   is     undefined    beyond   insisting       upon   a

constitutional violation.49


      46
           See infra notes 50-67 and accompanying text.
      47
           See infra notes 68-81 and accompanying text.
      48
       See Thacker v. City of Columbus, 328 F.3d 244, 258-59 (6th
Cir. 2003) (noting that contrary to binding circuit precedent, some
panels do not recognize a § 1983 malicious prosecution claim, and
stating that the circuit has yet to define the elements of a
federal malicious prosecution claim).
      49
       See Pace v. City of Des Moines, 201 F.3d 1050, 1055 (8th
Cir. 2000) (“It is well established in this circuit that an action
for malicious prosecution by itself is not punishable under § 1983
because it does not allege a constitutional injury.” (internal
quotations and citations omitted)).

                                       19
      In Nieves v. McSweeney, the First Circuit cited four state

common law elements it requires for a malicious prosecution claim.50

But   the    court       then   stated    that    the    plaintiff    “must      show   a

deprivation of a federally-protected right.”51                 The court reasoned

that procedural due process cannot be the basis of the claim

because Massachusetts provides an adequate remedy, and Albright

forecloses substantive due process claims.52                 The court “assume[d]

without deciding that [a state law] malicious prosecution can,

under      some    circumstances,        embody   a     violation    of   the    Fourth

Amendment and thus ground a cause of action under section 1983.”53

Turning to the case at bar, the court acknowledged that while

malicious prosecution permits damages for deprivations of liberty

pursuant to legal process, the plaintiffs had been arrested without

a warrant.         Therefore, the plaintiffs failed to allege a seizure

which      could    be   part   of   their      malicious    prosecution        since   a




      50
        241 F.3d 46, 53 (1st Cir. 2001) (listing (1) the
commencement or continuation of a criminal proceeding against the
eventual plaintiff at the behest of the eventual defendant; (2)
the termination of the proceeding in favor of the accused; (3) an
absence of probable cause for the charges; and (4) actual malice).
      51
           Id.
      52
           Id.
      53
       Id. at 54; see Britton v. Maloney, 196 F.3d 24, 28 (1st Cir.
1999) (“We will simply assume, for the purposes of the analysis,
that the type of conduct which constitutes a malicious prosecution
under state law can sometimes constitute a violation of the Fourth
Amendment as well.”).

                                           20
warrantless     arrest    is    not    pursuant    to   legal   process.54      The

plaintiffs’ post-arraignment restrictions and harms (release on

their own recognizance, pending serious criminal charges, sullied

reputations,     pretrial      court    appearances,     and    trial)   were   not

seizures.55

     The Second Circuit also requires proof of a tort under state

common law and an injury caused by a deprivation of liberty

guaranteed by the Fourth Amendment.56             That court has noted that it

is “theoretically possible” for a plaintiff to premise a malicious

prosecution claim on some other constitutional right, in which case

the standard governing that right would determine whether there was

a constitutional violation.57           Like the First Circuit, the Second

requires    a   seizure     pursuant      to   legal     process,    ruling     out

warrantless arrests.58         However, the Second Circuit has found that




     54
          Nieves, 241 F.3d at 54.
     55
          Id. at 54-55.
     56
       Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.
1995) (stating that “the court must engage in two inquiries:
whether the defendant's conduct was tortious; and whether the
plaintiff's injuries were caused by the deprivation of liberty
guaranteed by the Fourth Amendment”); see also Murphy v. Lynn, 118
F.3d 938, 944 (2d Cir. 1997) (quoting Singer, 63 F.3d at 116, for
the holding that a § 1983 “plaintiff must show conduct that was
tortious under state law and that injury was ‘caused by the
deprivation of liberty guaranteed by the Fourth Amendment’”).
     57
          Singer, 63 F.3d at 116 n.5.
     58
          Id. at 116-17.

                                         21
post-arraignment travel restrictions are sufficient to constitute

a seizure.59

     The Third Circuit likewise requires proof of all common law

elements, as well as a constitutional violation,60 but not with

certainty. Rather, it has questioned the role of additional common

law elements of malicious prosecution: “For instance, if the harm

alleged is a seizure lacking probable cause, it is unclear why a

plaintiff would have to show that the police acted with malice.”61

However, it has not abandoned this requirement.             Like the Second

Circuit,    post-arraignment       restrictions   ($10,000    bond,   travel

restrictions, weekly contact with pretrial services, and attendance

at all pretrial hearings) constitute a seizure.62              Unlike most

circuits, the alleged constitutional violation is not limited to a

Fourth     Amendment    seizure,     and   includes   any    constitutional

violation, including violations of procedural due process (but not


     59
       Murphy, 118 F.3d at 946 (“[W]hile a state has the undoubted
authority   ...  to   restrict   a  properly   accused   citizen's
constitutional right to travel outside of the state as a condition
of his pretrial release, and may order him to make periodic court
appearances, such conditions are appropriately viewed as seizures
within the meaning of the Fourth Amendment.”).
     60
       See Donahue v. Gavin, 280 F.3d 371, 380 n.16 (3d Cir. 2002)
(stating that it had remanded a previous § 1983 case because “the
district court did not rule on whether [the plaintiff] had
satisfied the common law elements of a malicious prosecution
claim”).
     61
       Gallo v. City of Philadelphia, 161 F.3d 217, 222 n.6 (3d
Cir. 1998).
     62
          Id. at 222.

                                      22
substantive       due   process),63   a    distinction    that     will   draw   our

attention in this case.

     The Tenth Circuit is more restrictive, requiring proof of all

common law elements, but limiting the additional constitutional

violation to a violation of “the Fourth Amendment’s right to be

free from unreasonable seizures.”64              The court noted that where an

independent and untainted determination of probable cause is made

at the arraignment, the post-arraignment detention is not a seizure

even if the arrest was illegal.65

     In the Ninth Circuit the state tort of malicious prosecution

alone is not sufficient for a § 1983 claim if there is a state

remedy available, but there is an exception if the defendant had

the intent “to deprive a person of equal protection of the law or

otherwise    to    subject    a   person    to   a   denial   of   constitutional




     63
       See Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 792 (3d
Cir. 2000) (citing Torres v. McLaughlin, 163 F.3d 169 (3d Cir.
1998)).
     64
        Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)
(stating that “our circuit takes the common law elements of
malicious prosecution as the ‘starting point’ ... but always
reaches the ultimate question ... whether the plaintiff has proven
a constitutional violation”).
     65
          Id. at 1563-64.

                                          23
rights.”66    The plaintiff must satisfy the state law elements and

the element of purpose to deprive a constitutional right.67

     Adopting the second of the two broad approaches, the Fourth

Circuit in Lambert v. Williams held:

     [T]here is no such thing as a “§ 1983 malicious
     prosecution” claim.     What we termed a “malicious
     prosecution” claim . . . is simply a claim founded on a
     Fourth Amendment seizure that incorporates elements of
     the   analogous   common    law   tort    of   malicious
     prosecution--specifically, the requirement that the prior
     proceeding terminate favorably to the plaintiff. It is
     not an independent cause of action.68

     Interestingly, the Fourth Circuit cites cases from the First,

Second, and Tenth Circuits as taking the same approach it adopted,69

pointing     to   the   subtlety   of   the   difference   between   the   two

approaches.       The difference, nonetheless central, is that when the

constitutional violation is the focus, only those common law

elements which are consistent with enforcement of a constitutional

right are incorporated, and those that are not are rejected.

     For instance, the Fourth Circuit has rejected the common law

malice requirement, “since the reasonableness of a seizure under


     66
       Poppell v. City of San Diego, 149 F.3d 951, 961 (9th Cir.
1998) (citing Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th
Cir. 1987)).
     67
          Id. at 962-63.
     68
        223 F.3d 257, 262 (4th Cir. 2000) (internal citations
omitted).
     69
       Id. at 261 (citing Britton v. Maloney, 196 F.3d 24, 28-29
(1st Cir. 1999); Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir. 1997);
Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)).

                                        24
Fourth Amendment jurisprudence should be analyzed from an objective

perspective.”70   On the other hand, that court has incorporated the

requirement of a favorable termination, not only as a prerequisite

to recovery, but also to establish the time of accrual.71 The court

stated that incorporating common law elements was not done to

create a new cause of action, but rather was “in recognition of the

fact that § 1983 was designed to create a ‘special species of tort

liability.’”72 It pointed to several Supreme Court cases where

common law elements were incorporated into § 1983 claims.73

     The Seventh Circuit, like the Fourth, does not recognize a

federal claim of malicious prosecution: “[I]f a plaintiff can

establish a violation of the fourth (or any other) amendment there



     70
          Id. at 262 n.2 (internal quotations marks omitted).
     71
       Id. at 262 n.3. As mentioned, this court took a similar
approach by adopting only this element in Brummett v. Camble, 946
F.2d 1178, 1183 (5th Cir. 1991), as did the Supreme Court in Heck
v. Humphrey, 512 U.S. 477 (1994).
     72
       Lambert, 223 F.3d. at 262 (quoting Imbler v. Pachtman, 424
U.S. 409, 417 (1976)).
     73
       Id. (citing Heck, 512 U.S. at 483-84 (finding a legality of
confinement claim analogous to the malicious prosecution tort, and
incorporating into the federal claim the common law prerequisite of
termination of the prior criminal proceeding in favor of the
accused); Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299,
305-06 (1986) (incorporating common law damages principles into a
§ 1983 claim and finding that the abstract "value" of
constitutional rights cannot form the basis of compensatory
relief); Carey v. Piphus, 435 U.S. 247, 253-67 (1978) (structuring
compensatory damages principles under § 1983 by reference to common
law); Imbler, 424 U.S. at 422-29 (incorporating the common law
principle of prosecutorial immunity)).

                                  25
is nothing but confusion to be gained by calling the legal theory

‘malicious       prosecution.’”74     Instead,    “[c]laims   of    malicious

prosecution should be analyzed ... under the language of the

Constitution itself and, if state law withholds a remedy, under the

approach of Parratt,” whereby the adequacy of a state law remedy

bars a due process claim.75 The Seventh Circuit explicitly rejected

its earlier holdings which required the state law elements of the

tort to be satisfied, stating that “whatever scope malicious

prosecution may have as a constitutional tort after Albright, it

does not depend on state law in this way.”76         It had no occasion to

consider which common law tort elements of malicious prosecution it

would incorporate.       Finally, it recognized that Newsome had stated

a   due    process    claim   “if   the    prosecutors   withheld    material

exculpatory details.”77

      The Eleventh Circuit takes an approach quite similar to that

of the Fourth Circuit.        In    Whiting v. Traylor, the court stated

that labeling a § 1983 claim as a malicious prosecution claim

      can be a shorthand way of describing a kind of legitimate
      section 1983 claim:      the kind of claim where the
      plaintiff, as part of the commencement of a criminal
      proceeding, has been unlawfully and forcibly restrained



      74
           Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001).
      75
           Id.
      76
           Id. at 750.
      77
           Id. at 752 (citing Brady v. Maryland, 373 U.S. 83 (1963)).

                                      26
     in violation of the Fourth Amendment and injuries, due to
     that seizure, follow as the prosecution goes ahead.78

The court then concluded that “[i]n determining when a section 1983

claim accrues (as well as the elements which must be pled to state

a claim) we must seek help from the common law tort which is most

analogous to the claim in the case before us.”79                 In situations

where the alleged seizure was pursuant to legal process the tort of

malicious    prosecution      is   most     analogous,   and    so     the   court

incorporated the favorable termination element whereby the claim

does not accrue until the prosecution ends in the plaintiff’s

favor.80     In   addition,    the   court    noted   that     under   analogous

malicious prosecution principles, injuries caused by the unlawful

seizure may include those associated with the prosecution.81

                                      III

     We now turn to Albright, which, as important as it is, held

far less than is now being claimed.             First, we remind that the

charges in Albright were dismissed after petitioner’s arrest and

release on bail.     There was no further prosecution.           Chief Justice


     78
          85 F.3d 581, 584 (11th Cir. 1996).
     79
          Id. at 585 (citing Heck v. Humphrey, 512 U.S. 477 (1994)).
     80
       Id.; see also Wood v. Kesler, 323 F.3d 872, 881-82 (11th
Cir. 2003) (discussing incorporation of both state and federal
common law tort elements).
     81
        Id. at 586 & n.10 (noting that there may be causation
problems if an independent prosecutor’s actions broke the causal
link between the defendant officer’s behavior and the plaintiff’s
injury).

                                      27
Rehnquist, in his opinion for the Court, precisely stated the claim

presented:

     Petitioner’s claim before this Court is a very limited
     one. He claims that the action of respondents infringed
     his substantive due process right to be free of
     prosecution without probable cause. He does not claim
     that Illinois denied him the procedural due process
     guaranteed by the Fourteenth Amendment.    Nor does he
     claim a violation of his Fourth Amendment rights,
     notwithstanding the fact that his surrender to the
     State’s show of authority constituted a seizure for
     purposes of the Fourth Amendment.82

The Court was also precise in what it was holding:

     Where a particular Amendment “provides an explicit
     textual source of constitutional protection” against a
     particular sort of government behavior, “that Amendment,
     not the more generalized notion of ‘substantive due
     process,’ must be the guide for analyzing these
     claims.”83

     Albright    rejected   the   contention   that   the   initiation   of

criminal proceedings without probable cause is a violation of

substantive due process, holding that petitioner must look to the

explicit text of the Fourth Amendment as a source of protection for

the “particular sort of government behavior” at issue.             To the

point, causing charges to be filed without probable cause will not

without more violate the Constitution.         So defined, the assertion

of malicious prosecution states no constitutional claim.            It is

equally apparent that additional government acts that may attend



     82
          Albright v. Oliver, 510 U.S. 266, 271 (1994).
     83
        Id. at 273 (quoting Graham v. Conner, 490 U.S. 386, 395
(1989)).

                                    28
the initiation of a criminal charge could give rise to claims of

constitutional deprivation.

     The initiation of criminal charges without probable cause may

set in force events that run afoul of explicit constitutional

protection - the Fourth Amendment if the accused is seized and

arrested, for example, or other constitutionally secured rights if

a case is further pursued.           Such claims of lost constitutional

rights are for violation of rights locatable in constitutional

text, and some such claims may be made under 42 U.S.C. § 1983.

Regardless, they are not claims for malicious prosecution and

labeling them as such only invites confusion.

                                      IV

                                       1

     One matter should here be put to rest.                Under the unique

circumstances    of   this   case,   we    apply   an   abuse   of   discretion

standard, rather than plain error.84          We ask “whether the court's

charge, as a whole, is a correct statement of the law and whether

it clearly instructs jurors as to the principles of the law

applicable to the factual issues confronting them.”85                It is true

that defendants did not object to the jury charge beyond urging

their earlier motions for judgment as a matter of law.86                 It is

     84
          United States v. Daniels, 281 F.3d 168, 183 (5th Cir. 2002).
     85
          Id. (internal quotations and citations omitted).
     86
       We iterate our longstanding view that failure to object to
a jury charge ordinarily limits review to plain error. See, e.g.,

                                      29
equally true that defendants did object to allowing the jury to

consider wrongful   conviction   as   a   claim   under   the   Fourth   or

Fourteenth Amendment, making their legal position clear to the

magistrate judge both by their motions for judgment as a matter of

law, as well as by explicit renewal of those motions at the charge

conference in response to the judge’s invitation to lodge any

objections to the proposed charge.        Moreover, defendants appeal

from the district court’s denial of judgment as a matter of law,

and its rejection of the contention that the Fourth Amendment would

not support claims arising from the trial.

                                  2

     The magistrate judge in this case, facing the daunting task of

attempting to locate a regression line in our decisions, dismissed

all claims except claims for violation of the Fourth Amendment.          In

doing so he read Albright broadly in concluding that the Fourth




Tompkins v. Cyr, 202 F.3d 770, 783 (5th Cir. 2000); Highland Ins.
Co. v. Nat’l Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir.
1994); Farrar v. Cain, 756 F.2d 1148, 1150 (5th Cir. 1985). Rule
51 states that “[n]o party may assign as error the giving or the
failure to give an instruction unless that party objects thereto
before the jury retires to consider its verdict, stating distinctly
the matter objected to and the grounds of the objection.” “The
purpose of this rule is to allow the trial court to correct any
error before the jury begins its deliberation.” Farrar, 756 F.2d
at 1150. Nevertheless, given the unusual procedural history of
this case, that the jury was charged contrary to the law of the
case, and the fact that the nature of the defendants’ continued
objections to submitting the case to the jury went to the heart of
this error, an abuse of discretion standard is appropriate.

                                 30
Amendment afforded an adequate constitutional predicate for all of

the defendants’ conduct through trial – or none of it.

     In the effort to rest the entire trial upon the Fourth

Amendment, the trial judge instructed the jury that to prove he was

maliciously   prosecuted,   Castellano   must   establish    by   a

preponderance of the evidence each of the following:

     One, the defendants caused or commenced or aided a
     criminal proceeding against him; two, the defendants
     acted without probable cause; three, the criminal action
     terminated in his favor; four, he was innocent of arson;
     five, the defendants acted with malice by prosecuting him
     for arson; and six, he was damaged by the criminal
     proceeding.

The trial court further cabined the claims by instructing that:

     A person’s failure to fully and fairly disclose all
     material information and knowingly providing false
     information to the prosecutor are relevant to the malice
     and causation elements of a malicious prosecution claim
     but have no bearing on probable cause.

     This instruction is a direct quotation from a decision of the

Texas Supreme Court stating the elements of a claim of malicious

prosecution under state law.87 It is a vivid example of the hazards

of blending state tort law with federal law in an undifferentiated

way. The Fourth Amendment of the United States Constitution cannot

be circumscribed by state tort law, yet this is the practical

effect of this instruction, in that if Fragozo were acting under

color of state law in providing the false information, there would

be no probable cause.   It neatly excised Castellano’s claim that

     87
       See Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 519
(Tex. 1997).

                                31
the falsity of the tapes and testimony furnished by Sanchez and

Fragozo was attributed to the prosecutors because Fragozo acted

under color of state law and hence denied Castellano due process,

just as the Texas Court of Criminal Appeals had concluded in

vacating his conviction.88 Locating the state elements of malicious

prosecution under the Fourth Amendment did not remove the trial

events from the case; at the same time, it fell short of putting

the Fourteenth Amendment back in because it limited the jury’s use

of evidence of fabricated evidence and perjured testimony to its

resolution of the issues of malice and causation.   The instruction

also assumed that initiating a criminal case without probable cause

denies a constitutional right, contrary to Albright, and that

defendants’ testimony at trial could supply the causal nexus

between the Fourth Amendment and the claim of wrongful conviction.

      As we will explain by the markers of the new path we define

today, this reading of the Fourth and Fourteenth Amendments was

deeply flawed. It swept too wide in two directions: simultaneously

holding that Albright closed the door to any claim of a deprivation



     88
       Ex parte Castellano, 863 S.W.2d 476, 485 (Tex. Crim. App.
1993) (“Fragozo acted under color of law and was, therefore, a
member of the prosecution team in the investigation of the instant
case and as such his knowledge of the perjured testimony was
imputable to the prosecution.”). Castellano went to trial on his
Third Amended Complaint. There he continued his allegations that
Ed Sargologos, the district attorney who prosecuted the case and
who was earlier dismissed from the case on immunity grounds,
knowingly used the manufactured and perjured testimony and withheld
that fact from the defendant.

                                32
of due process and that the protections of the Fourth Amendment

extended to events at trial.

     The manufacturing of evidence and the state’s use of that

evidence along with perjured testimony to obtain Castellano’s

wrongful conviction indisputably denied him rights secured by the

Due Process Clause.     They were not properly dismissed on the basis

that no claim was stated, or upon the confusing assertion that the

Fourteenth Amendment will not support a claim for “malicious

prosecution,” another example of the uncertainty accompanying the

use of the term malicious prosecution without lifting up the

constitutional claims. Defendants pressed the absolute immunity of

witnesses in their motions for summary judgment, but the magistrate

judge   did   not   reach   the   contention,   electing   to   accept   the

erroneous contention that under Albright there could be no denial

of due process if there was an adequate state tort remedy.          At the

same time, the magistrate judge determinedly applied holdings of

this court that malicious prosecution had the same elements whether

the claim was asserted under state tort law or § 1983.           To assist

in our explanation, we will unpack the ruling of the magistrate

judge, turning first to the dismissal of all claims under the

Fourteenth Amendment.

                                      3

     We cannot agree that the claims under the Fourteenth Amendment

were properly dismissed because there was no deprivation of due



                                     33
process that can support a claim for damages under 42 U.S.C. §

1983.     This view rests on two arguments.           First, that the specific

constitutional rights guiding a criminal trial spend their force in

assuring a fair trial, and, in its most primitive form, that they

cannot support an action under 42 U.S.C. § 1983.                     Second, that a

state remedy in tort to compensate for the injury is an adequate

post-deprivation response and hence there was no denial by the

state of the process secured by the Fourteenth Amendment.89

                                         4

     Turning    first   to    the   very      role   of   §   1983    in   enforcing

constitutional rights, the Supreme Court has made clear that

Congress created a species of tort liability with § 1983.90                   As the

court observed in Cary v. Piphus:

     [O]ver the centuries the common law of torts has
     developed a set of rules to implement the principle that
     a person should be compensated fairly for injuries caused
     by the violation of his legal rights.       These rules,
     defining the elements of damages and the prerequisite for
     their recovery, provide the appropriate starting point
     for the inquiry under § 1983 as well.91

     The    substantial      body   of   law    developing     the     immunity   to

liability of various players in criminal trials rests on the

implicit acceptance of the draw of § 1983 upon principles of tort


     89
           See, e.g., Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir.
2001).
     90
          Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 305
(1986).
     91
          435 U.S. 247, 257-58 (1978).

                                         34
law to compensate for injury suffered in the loss of constitutional

rights.92    We find no reasoned basis for concluding that § 1983 is

never available to remedy injuries wrought by a denial of due

process. The countervailing interests of law enforcement have been

weighed in the judicial development of the immunity doctrine, not

in somehow sidestepping the congressional command of § 1983.

                                       5

      Nor is there a serious suggestion that the Parratt doctrine

is applicable to Castellano’s claim that the manufacturing of

evidence and use of perjured testimony at trial leading to his

wrongful     conviction   denied   him      due   process.93   Albright,     in

forbidding the deployment of substantive due process to police

state actors’ conduct that was governed directly by particular

constitutional provisions, makes no such suggestion.

     In his concurring opinion in Albright, Justice Kennedy, joined

by Justice Thomas, made clear that in his view Albright’s due

process     claim   concerned   only   the    “malicious   initiation   of    a

baseless criminal prosecution,” rather than an unlawful arrest or

events at trial leading to a wrongful conviction, since there was




     92
          See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976).
     93
        Before trial defendants even urged that Fourth Amendment
claims should be dismissed because there was an adequate state
remedy.

                                       35
no trial.94 He noted that the Due Process Clause protects interests

“other than the interest in freedom from physical restraint,” and

assumed arguendo that “some of the interests granted historical

protection by the common law of torts (such as the interests in

freedom from defamation and malicious prosecution) are protected by

the Due Process Clause.”95   However, he also noted that even if

malicious initiation of charges was protected by the Due Process

Clause, such a claim would be barred: “[O]ur precedents make clear

that a state actor's random and unauthorized deprivation of that

interest cannot be challenged under 42 U.S.C. § 1983 so long as the

State provides an adequate postdeprivation remedy.”96

     That no other justices joined this writing aside, Justice

Kennedy’s opinion carefully distinguished the claim in Albright of

malicious initiation of charges from those cases where the Court

found that a criminal rule or procedure violated the fundamental

principles of due process.   He stated that Albright’s claim thus

     differs in kind from In re Winship, and the other
     criminal cases where we have recognized due process
     requirements not specified in the Bill of Rights. The
     constitutional requirements we enforced in those cases
     ensured fundamental fairness in the determination of
     guilt at trial. See, e.g., Mooney v. Holohan, 294 U.S.
     103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935) (due
     process prohibits “deliberate deception of court and


     94
       Albright v. Oliver, 510 U.S. 266, 281 (1994) (Kennedy, J.,
concurring).
     95
          Id. at 283-84.
     96
          Id. at 284.

                                36
     jury”   by   prosecution's     knowing     use   of   perjured
     testimony).97

     This qualification makes sense.     Unquestionably, the Parratt

principle is important in the effort to find principled limits to

§ 1983's reach into the tort fountain.    At the same time, the court

has recognized that its medicine can be too strong.              Justice

Kennedy explained its contraindications, observing that

     courts, including our own, have been cautious in invoking
     the rule of Parratt.      That hesitancy is in part a
     recognition of the important role federal courts have
     assumed in elaborating vital constitutional guarantees
     against arbitrary or oppressive state action. We want to
     leave an avenue open for recourse where we think the
     federal power ought to be vindicated,98

a reservation also expressed in Monroe v. Pape’s reading of § 1983

as supplementary to state remedies for constitutional injury.99

This caution also finds expression in Justice Kennedy’s statement

that a claim of malicious initiation of criminal proceedings

“differs in kind” from claims that implicate “fundamental fairness

in the determination of guilt at trial”100 – claims in which the

federal power ought to be vindicated.         The concurring opinion of

Justice Kennedy, joined by Justice Thomas, expresses the view that

Parratt can brake the spinning of new constitutional strictures



     97
           Id. at 283 (some citations omitted).
     98
           Id. at 284-85 (citations omitted).
     99
           365 U.S. 167 (1961).
     100
           Albright, 510 U.S. at 283.

                                   37
upon the trial of criminal cases from a blend of state tort law and

substantive due process, a principle running through Albright.

      At their most fundamental level, the values sought to be

vindicated here are core commands of our United States Constitution

– undiluted and unblurred by any blend of state tort law that would

either enhance or diminish its force.              Unlike defamation and

malicious prosecution, this constitutionally secured right of an

accused in a criminal case was not seeded in the common law of tort

where duties are the product of judicial choice with no roots in

the value choices of our organic law.

       We need not agree with the Seventh Circuit’s statement that

Justice Kennedy’s concurring opinion is the holding of Albright101

to agree that there are fundamental rights, albeit few in number,

secured by due process that differ in kind from those at issue in

Albright and which are beyond the reach of Parratt.                 Justice

Stevens made the point as well, observing, “[e]ven if prescribed

procedures are followed meticulously, a criminal prosecution based

on   perjured    testimony   ...   simply   does   not   comport   with   the

requirements of the Due Process Clause.”102         This is no more than

the line drawn by the Parratt line of cases and the handful of

cases decrying conduct so destructive of a fair trial that it




      101
            See Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001).
      102
            Albright, 510 U.S. at 300 (Stevens, J., dissenting).

                                     38
cannot be justified by procedures.103              As Chief Justice Rehnquist

put   it    in    Daniels,   the   Due   Process    Clause   protects   against

arbitrary acts of government by promoting fairness in procedure and

“by barring certain government actions regardless of the fairness

of the procedures used to implement them.”104

                                         6

      As we have indicated, we find the reasoning employed in

dismissing Castellano’s due process claims flawed.               Castellano’s

contention that the manufacturing of evidence and knowing use of

perjured testimony attributable to the state is a violation of due

process is correct.105 Nevertheless, on remand Castellano will face

the well-established rule that prosecutors and witnesses, including

police officers, have absolute immunity for their testimony at

trial.106        Courts have also held that non-testimonial pretrial

actions, such as the fabrication of evidence, are not within the

scope of absolute immunity because they are not part of the

trial.107        Thus, while Castellano’s due process claims are not


      103
        Zinermon v. Burch, 494 U.S. 113, 125-26 (1990); Daniels v.
Williams, 474 U.S. 327, 331 (1986); Parratt v. Taylor, 451 U.S. 527
(1981).
      104
            Daniels, 474 U.S. at 331.
      105
            See Mooney v. Holohan, 294 U.S. 103, 112, (1935).
      106
        See Buckley v. Fitzsimmons, 509 U.S. 259, 269-70 (1993);
Briscoe v. LaHue, 460 U.S. 325, 334-36 (1983).
      107
        See Buckley, 509 U.S. at 275-76. Defendants cannot shield
any pretrial investigative work with the aegis of absolute immunity

                                         39
properly rejected by the principles of Albright               and Parratt,

whether they survive the absolute immunity given witnesses in a

criminal trial or whether the fabrication of the tapes could have

been a legally sufficient cause of the wrongful conviction, we

leave to the district court on remand.108

                                    7

     Castellano attempts to salvage his verdict by contending that

the violation of the Fourth Amendment supports the verdict because

it was the direct cause of all that followed.

     In    her   concurring   opinion    in   Albright,   Justice   Ginsburg

articulated a theory that gave a broad reach to seizure under the

Fourth Amendment – suggesting that various constraints such as

travel restrictions and required attendance at pretrial hearings

might constitute a seizure and thereby extend the Amendment’s reach

toward trial.109    This view did not attract support in Albright and

we need not here further define its limits.          Rather, we adhere to

the view that the umbrella of the Fourth Amendment, broad and

powerful as it is, casts its protection solely over the pretrial



merely because they later offered the fabricated evidence or
testified at trial. Id. at 276; Spurlock v. Satterfield, 167 F.3d
995, 1003-04 (6th Cir. 1999) (finding “untenable” the result that
officials who fabricate evidence could later shield themselves from
liability simply by presenting false testimony regarding the
evidence).
     108
           See Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000).
     109
           Albright, 510 U.S. at 277-81.

                                    40
events of a prosecution.         This much is implicit in Albright’s

insistence that the source of constitutional protection is the

particular amendment offering an explicit and extended source of

protection against a particular sort of government behavior.110

     Plainly, the perjury and manufactured evidence that tainted

Castellano’s arrest also denied him due process when used again at

trial to convict him.       It is equally plain that his arrest, even

his indictment, did not lead inevitably to his trial and wrongful

conviction     and   the   damages   flowing   therefrom.   Rather,   the

prosecution of this case relied on the continued cooperation of

Sanchez and Fragozo at each of its subsequent phases.       As the Texas

Court of Criminal Appeals ultimately held, without their testimony,

there was insufficient evidence to convict.         And while Castellano

may recover for all injury suffered by its violation, the Fourth

Amendment will not support his damages arising from events at trial

and his wrongful conviction.

     We need not say that there could never be such a case to

conclude it is not this case.        Without the perjury at trial there

would have been no conviction, yet the perjury at trial did not

violate the Fourth Amendment.          That is, unless these events at

trial are somehow found to be a violation of Castellano’s Fourth

Amendment rights, there is no constitutional footing for a claim

seeking recovery for damages arising from the trial and wrongful


     110
           Id. at 273.

                                      41
conviction, as opposed to his arrest and pretrial detention, given

the dismissal of all but Fourth Amendment claims.

     It is true that the charge refers to a denial of due process

despite the pretrial dismissal of all but the Fourth Amendment, but

as we have explained, this reference to due process is confined by

the jury instruction.

                                       8

     We have no occasion here to consider afresh the federal common

law footing of our insistence that a state criminal proceeding

terminate     in    favor   of   a   federal   plaintiff   complaining   of

constitutional deprivations suffered in a state court prosecution,

a rule reflecting powerful governmental interests in finality of

judgments.111      Nor do we face the kindred exercise in deciding when

such a claim accrues under applicable limitations periods. Justice

Scalia’s opinion in Heck v. Humphrey answers any question of

limitations in the overwhelming percentage of cases, including this

case. It concludes that no such claim accrues until the conviction

has been set aside where, as here, the suit calls the validity of

the conviction into play.112

     The heart of Castellano’s claim is that the prosecution

obtained his arrest and conviction by use of manufactured evidence

and perjured testimony, actions attributable to it because Fragozo


     111
           See supra note 38 and accompanying text.
     112
           See Heck v. Humphrey, 512 U.S. 477, 484-87 (1994).

                                      42
acted under color of state law.            Castellano’s proof directly

implicated the validity of his conviction and therefore he could

not proceed and limitations could not accrue consistent with the

principles of Heck until the case was dismissed for insufficient

evidence by the state trial court on December 29, 1993, on remand

from the Texas Court of Criminal Appeals.          This suit followed nine

months later.113    Although the parties sparred in the trial court

over the general applicable period of limitations and the specific

effect of an amended pleading, the parties make no contention here

that the trial court’s holding that the federal claims were not

barred by limitations was in error in either respect.

                                     V

     We are persuaded that the judgment must be reversed and the

case should be remanded for a new trial of Castellano’s claims

under the Fourth and Fourteenth Amendments. Defendants are correct

that this     verdict   cannot   stand   resting   solely   on   the   Fourth

Amendment for the reason that the award of damages does not

distinguish between trial and pretrial events.              On remand the

district court will grant leave to amend to all parties to conform

their claims and defenses to this ruling.

     It is suggested that Castellano should not be able to pursue

any claims under the Fourteenth Amendment in that the magistrate



     113
           Heck was decided three months before this suit was filed.


                                    43
judge dismissed them before trial and Castellano filed no cross-

appeal.      It is settled that an appellee may urge any ground

available in support of a judgment even if that ground was earlier

and erroneously rejected by the trial court.114      Castellano has

attempted to salvage his verdict, as put at oral argument, on the

basis that, contrary to the ruling of the magistrate judge, he did

state a due process claim and it in practical effect was before the

jury.      While we have rejected this contention, it is quite plain

that to make it requires no cross-appeal.       Castellano does not

attempt to expand his rights under the judgment by urging that it

can be sustained under the Fourteenth Amendment despite the ruling

of the trial court.

     There remains the question of whether Castellano should also

be allowed to plead a state claim of malicious prosecution.      The

argument is that Castellano should be allowed to separate his

federal and state claims resting jurisdiction over the state claims

upon 28 U.S.C. § 1367.      We are keenly aware that our insistence

upon disentangling federal and state law may appear to be no more

than a message to the bar about pleading – clearly state separately

your state and federal claims.    Yet, although jury trials of cases

with both constitutional and supplemental state claims may be



     114
         See United States v. Hill, 42 F.3d 914, 917 n.8 (5th Cir.
1995); Hoyt R. Matise Co. v. Zurn, 754 F.2d 560, 565 n.5 (5th Cir.
1985); City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1254 n.4
(5th Cir. 1976).

                                   44
little unchanged by our work today, the principle insisted upon

here   remains    important.          Our     insistence     that     the     anchor   of

constitutional     claims       be    visible     is   demanded     by    our   limited

jurisdiction,      as    well    as    its    practical      utility     in     avoiding

confusion and dilution of constitutional values.                    Here Castellano

amended his complaint, purposely abandoning his claim under state

law.   He did so because our case law said the elements of malicious

prosecution under state law and under a § 1983 claim were the same.

We have pulled that legal rug from all the parties.                         As we have

observed, the magistrate judge’s undifferentiated draw upon state

law misread Albright.           But so did this court.

       In sum, we reverse the judgment and remand the case for a new

trial of Castellano’s federal and state claims under the Fourth and

Fourteenth Amendments and any state claims he may have. Castellano

has not articulated any theory supporting any other claims of lost

rights secured under the First, Fifth, and Eighth Amendments.

       REVERSED AND REMANDED FOR NEW TRIAL.



E. GRADY JOLLY, Circuit Judge, concurring and dissenting:

       I   join   both   Judge       Higginbotham      and    Judge      Barksdale     in

disclaiming the constitutional tort of malicious prosecution.                          I

join Judge Barksdale and Judge Jones in rejecting a remand on the

state claim.      I join Judge Barksdale in rejecting the due process




                                             45
claim.   I would remand for retrial on whatever remains of the

Fourth Amendment claims.




                              46
EDITH H. JONES, Circuit Judge, with whom SMITH, CLEMENT, and PRADO,

Circuit Judges, join, concurring and dissenting:



             Like Judge Barksdale, I applaud the court’s decision to

jettison its mischievous and unfounded theory constitutionalizing

the tort of malicious prosecution.            This result is overdue.      See

Brummett v. Camble, 946 F.2d 1178 (5th Cir. 1991); Kerr v. Lyford,

171 F.3d 330, 342 (5th Cir. 1999) (Jones, J., concurring); Gordy v.

Burns, 294 F.3d 722 (5th Cir. 2002).            While I largely agree with

Judge Higginbotham’s discussion of this point, I do not subscribe

to the majority’s broad remand order.

             In particular, the majority purports to allow Castellano

to retry state law claims against the two remaining appellants.

This    is   wrong    for    two   reasons.    As   Judge   Barksdale    notes,

Castellano     did     not   appeal    from   the   magistrate   judge    order

consolidating his state law malicious prosecution claim into a

§ 1983 claim.        Moreover, Castellano has clearly disavowed a state

law claim as recently as in his response to the petition for

rehearing en banc.           The disavowal turns on quirks of state law

rather than on this court’s constitutional about-face.115                   The

       115
       A judgment or settlement of a Texas Tort Claims Act case
involving a government employer bars the continuation of an action
or judgment against an employee of that department “whose act or
omission gave rise to the claim.” TEXAS CIVIL PRACTICE & REMEDIES CODE
§ 101.106; Thomas v. Oldham, 895 S.W.2d 352, 355-57 (Tex. 1995);
see also Owens v. Medrano, 915 S.W.2d 214 (Tex. App. - Corpus
Christi 1996, writ den’d.) (judgment against City of San Benito on
claims including one for malicious prosecution bars suit against
majority opinion continues a troublesome trend in this court’s

recent en banc decisions of deviating from normal standards of

appellate practice.       See, e.g., United States v. Southland Mgmt.

Corp.,     326   F.3d   669    (5th   Cir.   2003)   (en   banc)   (Jones,   J.,

concurring); Coggin v. Longview Indep. Sch. Dist., 337 F.3d 459

(5th Cir. 2003) (en banc) (Jones, J., dissenting).             I dissent from

this apparently unnecessary remand.116

             On the other hand, I cannot agree with Judge Barksdale’s

argument that Castellano waived any possible constitutional claim

by his trial court pleadings.          At every step of the litigation, he

conscientiously attempted to conform to this court’s decisions and

to accomplish the ultimately impossible task of harmonizing our

case law with that of the Supreme Court.                   Because this court

changed the game technically on Castellano, he should be allowed to

retry his claim as one for violation of procedural due process

based on the appellants’ fabrication of evidence against him.117

Judge Barksdale also powerfully argues that because Texas law

affords     Castellano    an    adequate     state   remedy   in   a   malicious


its police officers on same claim); Brand v. Savage, 920 S.W.2d
672, 674-75 (Tex. App. - Houston [1st Dist.] 1995).
     116
       I also dissent from allowing Castellano on remand to try a
Fourth Amendment claim properly limited, in events and damages, to
pretrial events. He never sought such limited relief in the trial
court. Awarding it here is, as Judge Barksdale says, impermissibly
lawyering the case for Castellano.
     117
       Whether this claim will survive a defense based on the
appellants’ absolute witness immunity has not been briefed and
remains open on remand.

                                        48
prosecution claim, the Parratt doctrine withholds a constitutional

remedy.    While this position may prove correct, we have no post-

Parratt guidance on it from the Supreme Court, and several courts

have allowed claims like Castellano’s to proceed without mention of

Parratt.    See, e.g., Newsome v. McCabe, 256 F.3d 747 (7th Cir.

2001); Jean v. Collins, 221 F.3d 656 (4th Cir. 2000) (en banc);

Brady v. Dill, 187 F.3d 104, 114 (1st Cir. 1999); McMillian v.

Johnson, 88 F.3d 1554, 1566-70, on reh., 101 F.3d 1363 (11th Cir.

1996); Taylor v. Waters, 81 F.3d 429, 436 n.5 (4th Cir. 1996);

Jones v. City of Chicago, 856 F.2d 985, 984 (7th Cir. 1988); Geter

v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988).    For now, I

would side with the other appellate courts and concur in this

portion of the majority’s remand.




                                 49
RHESA HAWKINS BARKSDALE, Circuit Judge, with whom EMILIO M. GARZA,

Circuit Judge, joins, concurring in part and dissenting in part:

     As is true of many well meaning, attempted solutions to long-

standing, significant problems, the majority opinion offers good

news and bad.     The good is our finally proscribing a claim under 42

U.S.C. § 1983 for malicious prosecution.                The bad comes in two

doses: substituted for the freshly minted proscription is an

erroneous new § 1983 claim for a due process violation; and this

action is being remanded for a new, open-ended trial not only on

that new claim but on others as well.          This double-barrelled blast

of bad news is compounded by Castellano’s never having requested on

appeal any of the relief provided him so generously, albeit so

erroneously, by the majority sua sponte.               In sum, while I concur

fully in the good news, I must respectfully dissent from the bad.

     The starting point for the new § 1983 claim’s being erroneous

is the maxim “Ubi jus, ibi remedium” — “Where there is a right,

there is a remedy”.       See, e.g., Texas & P. R. Co. v. Rigsby, 241

U.S. 33, 40 (1916).        Our federal system counterpoint is: “Where

there   is   a   right,   there   may   not   be   a   federal   law   remedy”.

Restated, it may be that the remedy must be through state law.

This reflects, among other things, the limited powers granted by




                                        50
our federal constitution, the concomitant limited role of federal

courts, and the proper balance between state and federal law.

      Accordingly, it is indeed passing strange that, on the one

hand,   the   majority    properly    prohibits   pursuing    a   state   law

malicious prosecution claim under § 1983, while, on the other, it

improperly creates, sua sponte no less, a new federal law remedy to

be pursued under § 1983: a witness’ pre-trial evidence fabrication

and perjury at trial equals denial of Fourteenth Amendment due

process. (The majority does not state, however, whether the denial

is   “substantive”   or    “procedural”;    as    discussed   infra,      that

distinction is a critical factor.)         It is even more strange that

the majority creates this new remedy in the face of the crystal

clear limiting signal in Albright v. Oliver, 510 U.S. 266 (1994)

(holding no claim under § 1983 for malicious prosecution based on

asserted Fourteenth Amendment substantive due process right to no

prosecution without probable cause), especially the concurrence by

Justice Kennedy, id. at 281.         No authority need be cited for the

rule that federal courts should avoid constitutional issues if

possible, yet the majority goes out of its way, sua sponte, to

create this new remedy.

      On top of all this, the majority remands, sua sponte, for a

new trial on this new remedy and several other issues.             In other

words, on appeal, Castellano has not sought any of this relief.

Under our long established rules of appellate procedure, this


                                      51
failure alone precludes the majority’s sua sponte remedy-creation

and remand.

     Consistent with my dissent from the vacated panel opinion, I

concur in the holding that malicious prosecution may not be pursued

through § 1983.   See   Castellano v. Fragozo, 311 F.3d 689, 712 (5th

Cir. 2002) (Barksdale, J., dissenting), vacated by 321 F.3d 1203

(5th Cir. 2003); Kerr v. Lyford, 171 F.3d 330, 342 (5th Cir. 1999)

(Jones, J., concurring).        This was the sole reason for en banc

review.   Most regrettably, new, unbriefed issues have been used to

diminish, if not swallow, this new holding.       Again,      the majority

has confected, sua sponte, a new § 1983 due process claim to

replace the now torpedoed § 1983 malicious prosecution claim.

Again, to make matters even worse, it remands, sua sponte, for an

open-ended new trial on this and other issues.

     Accordingly,   I   must    respectfully   dissent   in   part.   The

majority erred in establishing this new § 1983 claim.          And, again,

in order to establish it and to remand for the new trial on it and

other claims, the majority turned its back on long-standing rules

of appellate procedure.        There is no justification for creating

this new § 1983 claim and remanding to allow Castellano yet another

round of litigation, despite his repeated failures at trial and on

appeal to raise the very issues the majority now allows him

belatedly to try on remand.      We are not a court of original error;




                                    52
yet that is the role played by the majority.             It has turned the

trial and appeal process on its head.

                                     I.

     At this stage, it is critical to appreciate that only two

defendants remain in this action:          Fragozo, a police officer who

was a part-time security guard for Castellano; and Sanchez, who was

employed by Castellano.    Fragozo and Sanchez are linked in various

ways, including alleged fabrication of evidence prior to, and

alleged perjury at, Castellano’s criminal trial.            Fragozo is the

requisite “state actor” for § 1983 purposes.

     The following defendants no longer remain in this action; the

law of the case bars Castellano from bringing any of them back in

on remand.     Dismissed were: the County of Bexar, Texas; its

district   attorney’s   office;      its   prosecutor;   the   City   of   San

Antonio, Texas, for which Fragozo was a police officer; and Alfred

Castro, an arson investigator for that city’s fire department.

Immediately   after   removal   to    federal   court,   the   county,     the

district attorney’s office, and the prosecutor were dismissed on

the basis of prosecutorial immunity.          At trial, each of the then

remaining four defendants moved for judgment as a matter of law,

with that relief being granted the city; and, although the jury

returned a verdict against Fragozo and Sanchez, it did not find

Castro liable.   In sum, of the original seven defendants, only two

remain.



                                      53
      Castellano did not cross-appeal the dismissal of these five

defendants.      Again, the law of the case bars him from bringing any

of them back in on remand.          Again, only Fragozo and Sanchez remain.

In conjunction with those two remaining defendants, the majority

opinion contains several errors and omissions related to the

procedural history of this action which demonstrate, in part, why

the new § 1983 claim and remand are improper.

      First, Castellano’s third amended complaint presented § 1983

claims     under    the    First,    Fourth,     Fifth,   Sixth,     Eighth,   and

Fourteenth Amendments.           According to the majority, all but the

Fourth Amendment claim were dismissed.             Maj. Opn. at 8, 31, and 42.

Instead, all       but    the   Fourth   and    First   Amendment    claims    were

dismissed.       Castellano abandoned the latter.

      According to the majority, Castellano, by amendment to his

complaint, abandoned his state law malicious prosecution claim.

Maj. Opn. at 2 and 45.          Instead, over Castellano’s objection, the

magistrate judge merged that state law claim with Castellano’s §

1983 Fourth Amendment claim.

      This case was tried on Castellano’s now proscribed § 1983

malicious prosecution claim; a quite substantial jury verdict

resulted.        But, as noted, that verdict was against only two

individuals.       When they appealed, Castellano did not cross-appeal

any   of   his     numerous     dismissed      claims   (i.e.,   §   1983   claims

concerning the Fifth, Sixth, Eighth, and Fourteenth Amendments); or


                                         54
the consolidation of his Fourth Amendment claim with his state law

malicious       prosecution    claim;    or   the   dismissal    of   the   other

defendants, such as the city.             Accordingly, the only issue on

appeal – including before our en banc court – was the jury’s

malicious prosecution verdict against Sanchez (Castellano’s former

employee) and Fragozo (the policeman who had worked for Castellano

as a part time security guard and was linked to Sanchez).

     Castellano was successful before the panel.                At rehearing en

banc, he provided no new briefing, electing to rely on his panel

brief.     As discussed infra, the majority states that, although

Castellano did not cross-appeal, he nevertheless urged, at some

point on appeal, affirmation of the jury’s malicious prosecution

verdict on the separate basis of due process.             This is simply not

correct.    And, although the majority does not suggest Castellano

urged affirmation on the basis of other constitutional and state

law claims, it nevertheless remands for a new trial with respect to

those claims as well.

                                        II.

     The majority remands for a new trial on the following:                   its

new Fourteenth Amendment due process claim (again, as discussed

infra,     it    does    not   distinguish     between    “substantive”      and

“procedural”);       a   Fourth   Amendment     claim;   a   state    malicious

prosecution claim; and “any other” claim under state law when, on




                                         55
remand, Castellano amends his complaint for the fourth time.             I

would not allow a new trial on any of these.

                                   A.

       The new § 1983 due process claim confected by the majority

fails on two bases.         First, the issue was never presented on

appeal. Second, it is barred by the Parratt doctrine.

                                   1.

       Our prudential appellate rules preclude us from entertaining

a Fourteenth Amendment due process claim of any stripe.          This is

especially true because it is a constitutional issue; one we

should, and can properly, avoid.         In district court, Castellano

pleaded a procedural due process claim, which was dismissed along

with his Fifth, Sixth, and Eighth Amendment claims.           Castellano

prevailed at a jury trial on another basis (malicious prosecution)

against only two of seven defendants.

       When those two defendants appealed, Castellano elected not to

raise by cross-appeal (or otherwise) the dismissal of any of these

claims,   including   his   Fourteenth   Amendment   due   process   claim

(again, he had abandoned his First Amendment claim).         In general,

even   without filing a cross-appeal, an appellee can still present

an issue on appeal that does not seek to modify the judgment; in

other words, he must cross-appeal only when he seeks to alter it.

E.g., Kelly v. Foti, 77 F.3d 819, 822 (5th Cir. 1996).               But,

obviously, even if a cross-appeal is not required to present an


                                   56
issue, the appellee must still present it on appeal if he wants it

considered.   E.g., United States v. Hill, 42 F.3d 914, 917 n.8 (5th

Cir.), cert. denied, 516 U.S. 843 (1995).    Castellano did neither.

     The majority holds, based upon an extremely thin reed, that

Castellano presented the new Fourteenth Amendment due process

claim, thereby allowing our court to consider it:   “Castellano has

attempted to salvage his verdict, as put at oral argument, on the

basis that contrary to the ruling of the magistrate judge he did

state a due process claim and it in practical effect was before the

jury”.   Maj. Opn. at 44 (emphasis added).    Generally, of course,

our court does not consider issues raised for the first time at

oral argument – most especially at en banc oral argument.     E.g.,

Vargas v. Lee, 317 F.3d 498, 503 n.6 (5th Cir. 2003).      Although

Castellano did plead a procedural due process claim in district

court, he did not present a due process claim at any point on

appeal — not in his panel brief, not in his en banc brief (which

merely adopted the panel brief), and not even at en banc oral

argument.

     This claim may not be considered for three reasons:   (1) at en

banc oral argument, Castellano never urged this court to affirm on

due process grounds — procedural or otherwise; (2) in his panel and

en banc briefs, he never urged affirmance on such grounds; and (3)

at issue is a jury verdict for malicious prosecution, to which the




                                 57
cross-appeal exception relied on by the majority, discussed infra,

does not apply.

                                a.

     Even assuming we should consider an issue presented for the

first time at en banc oral argument, I am puzzled by the majority’s

insistence that, at that argument, Castellano urged affirmation on

the basis of due process.   Castellano never did so; in fact, on

several instances, he refused to make such a request, even when

repeatedly pointed in that direction by our court.

     There were several procedural due process questions asked

Castellano’s counsel by several judges.   Most notably, immediately

after a colloquy over whether procedural, instead of substantive,

due process had been left open by Albright (Castellano presumed, as

he has since his first due process claim in district court, that

only procedural due process was available), another judge: (1)

provided a lengthy description of the procedural due process claim

in the context of perjured testimony and an unfair trial; (2)

identified the Brady v. Maryland, 373 U.S. 83 (1963), line of

cases; and (3) asked Castellano’s counsel what sort of argument he

would make under this legal theory in support of the judgment.   To

his credit, because he had never presented the issue, Castellano’s

counsel responded:   “Your honor, I’m not sure I can answer that

question today, but I would certainly welcome the opportunity to

brief the issue fully if the court would so request”.   Castellano


                                58
did not then urge, just as he had not previously urged, our court

to affirm on the basis of a due process violation.         This was

confirmed by the fact that he was not prepared to discuss the point

and did not attempt to wing it at en banc oral argument.

                                 b.

     Nowhere in his panel or en banc briefs does Castellano request

this court to affirm on the basis of a § 1983 due process claim.

One issue raised by defendants’ appeal was the claimed reversible

error caused by the quite erroneous inclusion of the term “due

process” in the malicious prosecution jury instruction.         But

Castellano never contended on appeal that the inclusion of this

term was a correct statement of the law or that our court should

affirm on due process grounds.

      In fact, Castellano took the opposite position.   In claiming

in his panel brief that there was no error in the instructions –

certainly not reversible error – Castellano was saying that the

erroneous inclusion of the term “due process” in the instruction

did not affect the trial’s outcome.   He was not asserting that our

court should affirm the judgment because procedural due process so

requires, or even that the jury reached its verdict on that basis.

To the contrary, he was maintaining that we should affirm in spite

of the erroneous inclusion of the words “due process” in the

instruction.   Neither of Castellano’s briefs (panel or en banc)




                                 59
includes a contention that this court should affirm because his due

process rights were violated.

                                     c.

     Even if Castellano had urged affirmation based on due process

grounds, he would have had to cross-appeal in order to do so; the

exception to the cross-appeal rule simply does not apply in this

instance.    The majority states:         “It is settled that an appellee

may urge any ground available in support of a judgment even if that

ground was earlier and erroneously rejected by the trial court”.

Maj. Opn. at 44 (emphasis added; citing Hill, 42 F.3d at 917 n.8;

Hoyt R. Matise Co. v. Zurn, 754 F.2d 560, 565 n.5 (5th Cir. 1985);

City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1254 n.4 (5th

Cir. 1976)).     For some instances (not so here), this is a correct

statement of the rule.          Here, however, the majority mistakenly

stretches this rule far beyond its intended scope.                   Again, our

court is not affirming a judgment; instead, we are vacating a

judgment    premised   on   a   jury’s    verdict   based   on   a    malicious

prosecution, not a due process, claim. Again, the exception to the

cross-appeal rule only applies where the appellee urges affirmation

on the basis of a claim rejected by the district court; Castellano

did not do so.    He was quite satisfied with, and clung tenaciously

to, his judgment based on malicious prosecution.

     An examination of the cases relied upon by the majority

demonstrates the exception’s proper application.                 In Hill, on


                                     60
defendant’s appeal from the sentence imposed following his guilty

plea, we allowed the Government to urge affirmation on the basis of

a statute that had been rejected by the “district court’s ruling”.

The judgment was affirmed.    42 F.3d at 917 n.8.     In Zurn, the

appellee maintained that the record provided an alternative ground

to support the district court’s bench trial decision.    Our court

held an appellee may take the position on appeal, without filing a

cross-appeal, that the record supports “the court’s judgment”. 754

F.2d at 565 n.5.   Likewise, our court held in Birchfield that the

district court’s statement, upon dismissing the complaint on two

grounds, to the effect that defendant’s other contentions were

inappropriate for determination on a motion to dismiss, did not

require a cross-appeal in order to assert those other contentions

on appeal.   529 F.2d at 1254 n.4.   None of these cases involves a

jury verdict.

     To contend that a trial judge’s ruling on an issue was

erroneous and that we should therefore affirm, without a cross-

appeal, on that basis may, in some instances (not so here) be

correct. That is not the situation at hand.   Castellano has failed

to follow any of our appellate rules with respect to the due

process claim he presented only in district court; we are not

permitted to consider it.




                                61
                                     2.

     Assuming arguendo that, on appeal, Castellano did properly

present a due process claim, it is barred by the Parratt doctrine.

Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by

Daniels v. Williams, 474 U.S. 327 (1986), held:                where state law

provides an adequate post-deprivation remedy, the plaintiff is

barred from claiming, through § 1983, a procedural due process

violation.    This prohibition, however, does not extend to claimed

violations of recognized substantive rights incorporated in the

Fourteenth Amendment.         E.g., Augustine v. Doe, 740 F.2d 322 (5th

Cir. 1984) (holding Parratt inapplicable to claimed violation                 of

recognized   Fourth     Amendment    substantive      right,    but    remanding

another claim to determine whether state actors’ conduct was

“official    policy”,    or    instead    “random    and    unauthorized”    and

therefore a procedural due process violation — a claim barred by

Parratt).    For this reason, understanding the distinction between

procedural and substantive due process, and determining which claim

Castellano    pleaded    in     district    court,     is    most     essential.

Unfortunately, the majority brushes this aside in its relentless

effort to provide Castellano a remedy – any remedy – on remand.

     Along this line, it is again imperative to recognize the

defendants who are, and are no longer, in this action.                The county,

the district attorney’s office, the prosecutor, the city, and its

arson investigator are out; only Fragozo and Sanchez remain.                  In


                                      62
short, Fragozo is the only “state actor” and an extremely tenuous

one at that.

       As discussed below, in district court, Castellano pleaded a

procedural due process violation.            Indeed, the Supreme Court has

only   characterized     the    type   of   conduct    Castellano      alleges   –

fabricated evidence and perjured testimony – as violative of

procedural, not substantive, due process.                  Carving out a new,

stand-alone substantive right under the Fourteenth Amendment, one

that was not pleaded by Castellano in district court and has never

been articulated by the Supreme Court, is not warranted, to say the

least.      This is especially true where the alleged conduct by the

state actor (Fragozo, the police officer and part time security

guard for Castellano) is of the “random and unauthorized” type

pinpointed by Parratt as being violative of procedural due process.

Parratt, 451 U.S. at 541.

       In   district   court,    Castellano    pleaded     a     procedural,   not

substantive,     due   process    violation.          In   his    third   amended

complaint, he claimed that he was deprived of his right to due

process and a fair trial because the defendant witnesses allegedly

fabricated evidence and gave perjured testimony.                 Defendants were

of the view that, post-Albright, a § 1983 claim for substantive due

process was prohibited. Therefore, they contended in their summary

judgment     motions   that     Castellano    had     pleaded      a   proscribed

substantive due process claim that should be dismissed.

                                       63
     In response, Castellano seized every opportunity to clarify

his position, denying that his claim was for a violation of

substantive due process; in one instance, he called defendants’

characterization “disingenuous”.        Instead, Castellano carefully

explained that, because Albright apparently did not allow a stand-

alone substantive due process claim, he was not asserting one.

     Whether    this   interpretation   of   Albright   is    accurate   is

irrelevant.    For the purpose of deciding what claims Castellano

presented in district court, we need look no further than to his

own interpretation. The only substantive constitutional violations

Castellano claimed were under the First, Fourth, Fifth, Sixth, and

Eighth   Amendments,    made   applicable    through    the    Fourteenth

Amendment.     And, for a separate Fourteenth Amendment claim, he

asserted violation of his right to procedural due process and was

deliberate in explaining to the magistrate judge that he was not

claiming a violation of substantive due process.

     Pursuant to Parratt, the existence of an available independent

and adequate state remedy precludes Castellano’s procedural due

process claim.    The only exception is when the plaintiff “pleads

and proves” that available state remedies are inadequate to redress

the wrong.    E.g., Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.

1995).   Castellano did not do so; on the contrary, he pushed for

relief through an independent state malicious prosecution claim,



                                  64
apparently appreciating its “adequacy” enough to object when the

magistrate judge consolidated it with his Fourth Amendment claim.

     Castellano’s pleadings aside, and as noted, the Supreme Court

has only characterized conduct of the type alleged by Castellano as

a violation of procedural due process.              The majority correctly

cites Mooney v. Holohan, 294 U.S. 103 (1935), for the proposition

that fabricated evidence and perjured testimony are violative of

due process.      Maj. Opn. at 39.        But as Chief Justice Rehnquist

explained in the Albright plurality opinion, such activities are

properly understood, under the Mooney, Brady line of cases, to

implicate procedural, not substantive, due process:

           Winship [397 U.S. 358 (1970)] undoubtedly
           rejected the notion that all of the required
           incidents of a fundamentally fair trial were
           to be found in the provisions of the Bill of
           Rights; but it did so as a matter of
           procedural due process:    “This notion [that
           the government must prove the elements of a
           criminal case beyond a reasonable doubt] –
           basic in our law and rightly one of the boasts
           of a free society – is a requirement and a
           safeguard of due process of law in the
           historic,    procedural   content    of   ‘due
           process.’” Similarly, other cases relied on
           by the dissent, including Mooney ... [and]
           Brady ... were accurately described in [United
           States v. Agurs, 427 U.S. 97 (1976)] as
           “dealing with the defendant’s right to a fair
           trial mandated by the Due Process Clause of
           the Fifth Amendment to the Constitution.”

Albright, 510 U.S. at 273 n.6 (citations omitted; emphasis added).

     In   fact,   the   conduct   described    in   some   of   these   cases,

prosecutorial — not witness — fabrication of evidence and its

                                     65
knowing use of perjured testimony, for example, is much more

fundamental to the fairness of a trial than, as with Fragozo and

Sanchez, a witness’ independent fabrication of evidence and perjury

— conduct not linked to the prosecutor’s conduct.    Nevertheless,

the Supreme Court characterized such prosecutorial conduct as

procedural.   Indeed, this is why, for deciding whether there is a

procedural due process violation, Parratt and its progeny consider

whether conduct was “random and unauthorized” (invoking procedural

due process), or instead part of an established state procedure

that is fundamentally flawed.    See Parratt, 451 U.S. at 543; see

also Copeland, 57 F.3d at 479.   Here, the former, not the latter,

factor is in play concerning the two remaining defendants.

     This procedural/substantive distinction is indispensable to §

1983 analysis because, as discussed, Parratt precludes § 1983

claims predicated on procedural due process where there is an

adequate state remedy, but does not preclude such claims predicated

on the violation of substantive rights that have been incorporated

into the Fourteenth Amendment.     But even if we assume arguendo

that, in district court, Castellano did claim a violation of

substantive due process (an assumption quite forcefully rejected by

Castellano), it is not at all clear that a witness’ fabricating

evidence and commiting perjury at trial is a sufficient basis for

a substantive due process violation.




                                 66
      As noted, courts have permitted § 1983 recovery for recognized

substantive violations, despite the availability of state law

remedies.     See, e.g., O’Quinn v. Manuel, 773 F.2d 605, 608 (5th

Cir. 1985) (concluding the Parratt doctrine, while barring § 1983

claim for procedural due process, does not bar one for claimed

violation of the “substantive eighth amendment right to be free

from cruel and unusual punishment”) (emphasis added); Augustine,

740 F.2d at 327 (holding Parratt doctrine does not bar § 1983 claim

for   violation    of    the   “substantive    [Fourth    Amendment]       right

protected   by    the   Constitution    against     infringement      by   state

governments”).     But I find no cases, and the majority cites none,

where a court has recognized a substantive due process violation

for a witness’ evidence fabrication and perjury. And some circuits

have interpreted Albright as precluding all § 1983 claims that are

predicated on a no more specific constitutional violation than

substantive    notions    of   due   process   of   law   (but   as   allowing

procedural due process or articulated constitutional provisions

such as the Fourth Amendment).         See, e.g., Merkle v. Upper Dublin

School Dist., 211 F.3d 782, 791 (3d Cir. 2000).

      In an apparent effort to side step the Parratt bar, the

majority refers in its opinion only to “due process” (due process

simpliciter?).     See, e.g., Maj. Opn. at 2-3, 35, and 38.            But, to

truly escape      Parratt, the majority must mean substantive due



                                       67
process. The Parratt doctrine precludes simply blending procedural

and substantive due process; instead, it requires identifying the

precise nature of the claimed constitutional violation.

      The conduct about which Castellano complained in district

court constitutes a procedural due process violation for which

state law provides an adequate post-deprivation remedy.               Remember,

Castellano is not seeking a new criminal trial because his trial

was fundamentally unfair. The state courts provided habeas relief,

and the State did not re-prosecute. Instead, Castellano is seeking

damages for alleged wrongs – now only by Sanchez and Fragozo – that

occurred before and during his criminal trial.             In such instances,

the state post-deprivation remedies are the “best the state can do”

to allow injured individuals recovery after injury has occurred.

Augustine, 740 F.2d at 327.        Such state remedies are sufficient to

address due process violations that are “random and unauthorized”

and therefore violate procedural due process.              Id.

      The majority is attempting to treat conduct the Supreme Court

has already characterized as potentially violative of procedural

due   process   as   though   it   is   also   violative    of   a   recognized

substantive constitutional right (as with O’Quinn and the Eighth

Amendment or Augustine and the Fourth).         In so doing, it apparently

hopes that Castellano’s § 1983 claim will escape the effect of

Parratt   and   somehow   become        “supplementary      to   [rather   than

precluded by] state remedies for constitutional injury”. Maj. Opn.


                                        68
at 37.    In support, the majority cites Monroe v. Pape, 365 U.S. 167

(1961).       Id.   But that case, involving police officers breaking

into and ransacking a home, concerned the recognized substantive

Fourth Amendment right made applicable by the due process clause of

the Fourteenth Amendment.        The majority attempts to slip past the

Parratt bar on this same ground.           Effectively, the majority can

only be considering Castellano’s claim as some sort of substantive

due process claim, but has avoided the damning label.

       The alleged conduct by Sanchez and Fragozo is precisely the

type     of   “random”   and   “unpredictable”   activity   that   Parratt

expressly prohibits being remedied through a claim under § 1983 –

this conduct relates to procedural due process and there are

adequate state remedies.       Again, Parratt distinguishes between the

“random and unauthorized (and hence unpredictable) conduct of a

state actor” (such as is at issue here) and “conduct that the state

can contain and direct by instituting procedural safeguards”.

Augustine, 740 F.2d at 327. The availability of a post-deprivation

state tort remedy does satisfy due process in the former instance,

but not in the latter.         Id.   Again, the conduct at issue here —

alleged witness fabrication of evidence and perjury — is precisely

the sort of “random and unauthorized” conduct to which Parratt

applies; therefore, the existence of adequate post-deprivation

state remedies, such as through a malicious prosecution claim, bars

a § 1983 procedural due process claim.

                                      69
     Relying    almost   exclusively       on   Justice   Kennedy’s      Albright

concurrence, the majority concludes that “the Parratt doctrine is

[not] applicable to Castellano’s claim that the manufacturing of

evidence and use of perjured testimony at trial ... denied him due

process”.   Maj. Opn. at 35.      The majority first claims that Justice

Kennedy warned of the contra-indications of Parratt, noting that in

some instances federal power ought to be vindicated, rather than

rely on state law remedies.       This is true; but that is only part of

the equation.     The majority then refers, by way of example, to

Monroe’s “reading of § 1983 as supplementary to state remedies for

constitutional injury”.         Maj. Opn. at 37.         Returning to Justice

Kennedy, the majority states that this notion — of § 1983 claims

supplementing    state    remedies    —    “finds     expression    in   Justice

Kennedy’s   statement    that    a   claim      of   malicious   initiation   of

criminal proceedings ‘differs in kind’ from claims that implicate

‘fundamental fairness in the determination of guilt at trial’”.

Maj. Opn. at 37-38.      The majority then determines that this latter

type of claim is one “in which the federal power ought to be

vindicated” and is therefore not barred by Parratt.                Id.

     As a preliminary matter, Justice Kennedy made a factual

distinction between malicious initiation of charges and conduct

that occurs during a trial; this was only a factual, chronological

distinction.    The majority’s conclusion is that the distinction

Justice Kennedy made between the conduct in Albright’s case and in


                                      70
other cases is actually a significant legal decision, identifying

the conduct in those other cases as “beyond the reach of Parratt”.

Maj. Opn. at 38.           Justice Kennedy never made such a conclusion.                     As

noted,     Chief         Justice      Rehnquist,      writing    for        the   plurality,

characterized            these   as    violations       of   procedural       due   process;

Justice Kennedy did not challenge that.

        That Justice Kennedy walked Albright’s conduct through the

Parratt analysis, but did not do so for other types of conduct

(like that at issue here), in no way implies that Parratt does not

apply to the latter.               Albright did not involve witness evidence

fabrication and perjury; accordingly, Justice Kennedy did not

address it.         But, by walking the conduct at issue here through the

steps Justice            Kennedy      applied    in   Albright,        it   is    clear    that

Parratt’s proscriptions are a perfect fit.

        Even    assuming,        arguendo,       that    Justice       Kennedy’s     factual

distinction is meant to imply that there are substantive due

process rights in the fundamental fairness of a trial, he does not

identify conduct sufficient to invoke them beyond a prosecutor’s

knowing use of perjury (Mooney) and the requirement of proving

elements       of    a    criminal     conviction       beyond     a    reasonable        doubt

(Winship).          It is the majority that holds that a witness’ evidence

fabrication and perjury are sufficient to invoke it.

    But again, a due process claim can bypass Parratt in only two

ways:    (1) the claim is substantive; or (2) it is procedural, but

                                                71
available state remedies are inadequate.                There is no dispute that

Castellano has neither pleaded nor proved the inadequacy of state

remedies.    Apparently this is why the majority finds it necessary

to provide cover for the only possible claim – substantive due

process.    But, because Castellano argued to the magistrate judge

against construing his claim as substantive, the majority labels it,

simply, “due process”.

     To support bypassing Parratt, the majority points to Justice

Kennedy’s statements that courts have “been cautious in invoking the

rule of Parratt” and that “[w]e want to leave an avenue open for

recourse where we think the federal power ought to be vindicated”.

Maj. Opn. at 37 (quoting Albright, 510 U.S. at 284-85 (Kennedy, J.,

concurring)).       Again, the majority opines that one avenue for

vindication is where a witness fabricates evidence or commits

perjury;    but, again, Justice Kennedy never says that.                Again, the

majority    cites    language     from        earlier    in   Justice    Kennedy’s

concurrence,     where    he    made     a     factual    distinction,     without

elaboration, on the difference between the type of conduct in

Albright and that in other cases.               See Albright, 510 U.S. at 283

(Kennedy, J., concurring). Of particular importance to this action,

Justice        Kennedy          then           cautioned,         however:


            But the price of our ambivalence over the outer
            limits of Parratt has been its dilution.... The
            Parratt rule has been avoided by attaching a substantive
            rather than procedural label to due process claims
            (a distinction that if accepted in this context

                                         72
                would render Parratt a dead letter) and by
                treating claims based on the Due Process Clause
                as claims based on some other constitutional
                provision.

Albright, 510 U.S. at 285 (Kennedy, J., concurring).                        (Of course,

this   is       precisely   what    the    majority       is   doing    —    trying    to

characterize the two remaining defendants’ conduct as violative of

something other than procedural due process, so that the new claim

can slip past Parratt.)            To stem this “dilution”, Justice Kennedy

offers this compelling guidance:

                These evasions are unjustified given the
                clarity of the Parratt rule: In the ordinary
                case where an injury has been caused not by a
                state law, policy, or procedure, but by a
                random and unauthorized act that can be
                remedied by state law, there is no basis for
                intervention under § 1983, at least in a suit
                based on “the Due Process Clause of the
                Fourteenth Amendment simpliciter”.

Id. (emphasis added).        There can be no more accurate description of

Castellano’s due process claim in district court.                    (Again, he does

not present such a claim on appeal.)

       As   a    final   note,     the   very    reason    why,   in    state    court,

Castellano added federal law claims must not be overlooked.                      He did

so through amended complaints in an apparent effort to avoid state

law immunity.        Justice Kennedy warned:          “The commonsense teaching

of Parratt is that some questions of property, contract, and tort

law are best resolved by state legal systems without resort to the

federal     courts”.        Albright,      510    U.S.    at   284     (Kennedy,      J.,



                                           73
concurring).       He later notes that “[t]he Parratt principle respects

the delicate balance between state and federal courts and comports

with the design of § 1983....”              Id.    Parratt makes very clear:

“Although the state remedies may not provide the respondent with all

the relief which may have been available if he could have proceeded

under § 1983, that does not mean that the state remedies are not

adequate to satisfy the requirements of due process”.            Parratt, 451

U.S.   at   544.    In   Parratt,   there    was   “no   contention   that   the

procedures themselves [were] inadequate”. Id. at 543. Nor is there

one here.

                                      B.

       In his third amended complaint, Castellano added a Fourth

Amendment claim.         As noted, the magistrate judge consolidated it

with Castellano’s original state law malicious prosecution claim.

Although Castellano objected to this rejection of the state law

malicious prosecution claim as a separate, stand-alone claim, he

never objected to the transformation of the Fourth Amendment claim

into a § 1983 malicious prosecution claim.                 And, as with his

procedural due process claim, he did not present the issue on

appeal.

       We should not remand for a new trial on a Fourth Amendment

claim.      At trial and on appeal, despite Albright, Castellano

repeatedly turned his back on the one claim he had under federal law

– the Fourth Amendment.        He was denied trial on a Fourth Amendment


                                      74
claim and a supplemental state malicious prosecution claim; but, he

elected not to contest that denial on appeal.

     Litigation must come to an end; fairness must be shown both

sides.    In my view, it is quite unfair to defendants, especially in

the light of what repeatedly took place at trial concerning the

Fourth Amendment claim, to afford Castellano yet another opportunity

to try such a claim.

                                 C.

     As noted, Castellano originally pleaded a state malicious

prosecution claim.    As also noted, the majority incorrectly states

he “amended his complaint, purposely abandoning [this] claim under

state law”.      Maj. Opn. at 45.      In his original state court

complaint, Castellano presented only a malicious prosecution claim.

Following his addition of § 1983 claims (apparently to avoid state

law immunity) and the subsequent removal of the action to federal

court, the magistrate judge ruled that Castellano’s action was based

entirely on malicious prosecution in the context of a claim brought

pursuant to § 1983.    Castellano’s    motion for reconsideration was

denied.

     The magistrate judge erred in placing the state law claim under

§ 1983; Castellano identified the error and objected.        But, as

noted, he never presented the issue on appeal.           Instead, he

contended in our court that the judgment was correct (and, by

extension, that the consolidation ruling upon which the verdict is


                                  75
based should stand).      Significantly, the majority never suggests

Castellano presented this issue on appeal. Nevertheless, it remands

for a new trial to include a malicious prosecution claim.

     The majority states that Castellano “purposely abandoned” his

state law malicious prosecution claim “because our case law said the

elements of malicious prosecution under state law and under a § 1983

claim were the same”.          Maj. Opn. at 45.       As noted, this is

inaccurate; the magistrate judge, not Castellano, merged the claims.

Presumably, the majority, out of sympathy for Castellano, would

still give him the benefit of this change in our precedent,

considering it unfair for Castellano to be burdened by our earlier

erroneous precedent.

     But Castellano was not so burdened.             He made a specific

objection   by   motion   to   the   consolidation   (which   was   denied).

Thereafter, as noted, he did not present the issue on appeal — even

though he had every reason to do so.         He was quite aware of both

Albright and Judge Jones’ extremely compelling concurrence in Kerr,

and had access to the law with respect to this issue in other

circuits.   Every factor on which our court now relies in changing

the law concerning § 1983 malicious prosecution was either expressly

or constructively before Castellano in district court.          Indeed, he

considered the magistrate judge’s ruling on this issue erroneous.

It was his option, therefore, to present this contention on appeal.




                                      76
He elected not to do so.       We cannot now pretend that he did.           Nor

can we allow him to pursue this claim on remand.

                                        D.

     As a final act of lawyering this action for Castellano, the

majority also allows him to plead “any [other] state claims he may

have” on remand.        Maj. Opn. at 45.       This action has become open-

ended.    In essence, the majority is starting it anew.          Instead, it

should be at an end.

                                       III.

     Sympathy for a litigant does not permit us to entertain claims

not presented on appeal — most especially, those of constitutional

dimension.      It most certainly does not allow us to create, sua

sponte, a new remedy for that litigant and an erroneous remedy at

that. At Castellano’s election, only the now-proscribed § 1983

malicious prosecution claim was at issue before our court; the

following claims were not:           (1) Fourteenth Amendment due process;

(2) Fourth Amendment; (3) state malicious prosecution; and (4) any

other state claim Castellano can dream up on remand.             In addition

to the new § 1983 due process claim’s being violative of Parratt,

any relief the majority accords Castellano on these issues greatly

exceeds   the   scope    of   this    appeal   and   is   violative   of   long

established appellate rules to which we require parties to adhere

— day in and day out — at their prejudice.




                                        77
     Accordingly, although I fully concur in our finally proscribing

a claim under § 1983 for malicious prosecution, I must respectfully

dissent from both the creation of the new § 1983 due process remedy

and the remand of this action for yet another round of litigation.

Instead, I would vacate and render for appellants.   This is not an

unfair result — far from it. It is the result for which Castellano,

by his election on appeal, rolled the dice ... and lost.




                                78
