                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 27, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 WILLIAM MILLER,

              Plaintiff-Appellant,                       No. 07-2134
 v.                                                      (D. of N.M.)
 PAUL SPIERS, MICHAEL FOX, and                (D.C. No. CIV-05-577-BB/LAM)
 DONNA ARBOGAST,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before HENRY, Chief Judge, O’BRIEN, and TYMKOVICH, Circuit Judges.


      In the course of investigating a murder in Albuquerque, New Mexico,

police investigators suspected William Miller. Miller was arrested and spent

seven weeks in custody, he claims on the basis of false evidence fabricated by the

investigators. Immediately after the arrest, he was caught attempting to eat a

couple of business cards he had hidden in his sock. These business cards,

apparently containing names of Miller’s associates, became evidence in the

murder investigation, and although murder charges were eventually dropped


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
against him, Miller pleaded no contest to attempted tampering with evidence and

received a suspended sentence.

      He subsequently brought a lawsuit under 42 U.S.C. § 1983 against various

individuals involved in the investigation, alleging the Defendants engaged in a

continuing conspiracy to violate his Fourth and Fourteenth Amendment rights.

The district court—treating Miller’s allegations not as a single claim but as

several separate Fourth and Fourteenth Amendment violations—granted summary

judgment to Defendants on statute of limitations and qualified immunity grounds.

Miller appealed.

      Because the district court erred in failing to analyze Miller’s allegations as

a single § 1983 claim—one resembling the common law tort of malicious

prosecution—summary judgment in favor of the Defendants was premature.

Accordingly, we VACATE the district court’s grant of summary judgment to

Defendants and REMAND for further proceedings.

                                   I. Background

      In three opinions issued concurrently, the district court resolved various

summary judgment motions filed by Defendants. The following background

presents relevant undisputed facts, as stated in the district court’s opinions.

      A Murder in Albuquerque

      This case arises from the September 1999 murder of Girly Hossencofft in

Albuquerque, New Mexico. Albuquerque Police Department detective Michael

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Fox and forensic scientist Donna Arbogast, together with assistant district

attorney Paul Spiers, investigated Mrs. Hossencofft’s murder. Although Mrs.

Hossencofft’s body was never found, her husband, Diazien Hossencofft, and his

girlfriend, Linda Henning, were eventually convicted of Mrs. Hossencofft’s

murder, kidnaping, and several other crimes. Early in the investigation, however,

police investigators also targeted Mr. Hossencofft’s acquaintance, William Miller,

as a possible participant in Mrs. Hossencofft’s murder. Miller alleges the police

conspired to fabricate evidence against him for the murder.

       In the course of their investigation, the police collected deer, rabbit, and cat

hair, as well as feathers, from the living room carpet in Mrs. Hossencofft’s

apartment. They also discovered at a nearby highway a bloody blouse, thought to

be Mrs. Hossencofft’s, wrapped in a tarp. Rabbit and cat hair along with feathers

were also collected from the tarp and blouse. A steam cleaner the police thought

was used to clean the carpet in Mrs. Hossencofft’s apartment likewise contained

deer hair. Deer, rabbit, and cat hair, as well as feathers, are all used for tying

flies for fly fishing.

       Armed with this evidence, and having learned from the investigation that

Miller was a fly fisherman, Detective Fox applied for a search warrant on Miller’s

residence in December 2000, seeking “any and all materials used in fishing,

hunting, gaming, or tying flies for fishing to include but not be limited to deer

hair,” as well as “any and all trace evidence.” Aplt. App. at 1180 (brackets

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omitted). In executing the search warrant, the police collected feathers as well as

deer, rabbit, and cat hair. They turned the evidence over to Arbogast’s forensics

department for testing.

      Miller’s Arrest

      On February 12, 2001, Fox prepared an affidavit for Miller’s arrest warrant.

In the affidavit, he linked the trace evidence collected during the December 2000

search to Mrs. Hossencofft’s murder. The police arrested Miller the same day.

      Immediately after his arrest and while in police custody, Miller hid a

couple of business cards in his sock. He then attempted to eat two of these cards

and in the process tore one card into several pieces. The police saw Miller try to

eat the cards and made him spit them out. We cannot tell from the record whose

names or businesses appeared on the cards, but the police believed the cards

contained the names of Miller’s associates who could help in the criminal

investigation. The police thus believed Miller tried to hide and destroy evidence

in an attempt to hinder their prosecution.

      Charges Against Miller

      After his arrest on February 12, Miller spent seven weeks in jail. Between

February 21 and 23, the State of New Mexico presented its case against Miller to

a grand jury. Fox and Arbogast both testified, allegedly supplying false

information and omitting critical details about the evidence linking Miller with

Mrs. Hossencofft’s murder. For example, Miller alleges Arbogast failed to

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explain to the grand jury that DNA testing of the human hair collected from the

tarp specifically excluded Miller but did not exclude Mr. Hossencofft’s girlfriend

Henning. And Fox allegedly falsely testified he found Henning’s burnt business

card inside Miller’s fireplace.

      The grand jury indicted Miller for conspiracy to commit murder, kidnaping,

and conspiracy to commit kidnaping. In addition, the grand jury indicted Miller

on several charges of tampering with evidence, including three counts stemming

from Miller’s attempt to eat the business cards.

      More than a year later, on May 21 to 23 of 2002, the prosecution, likely

prompted by Miller’s attorney challenging the alleged falsehoods made during the

February 2001 grand jury proceedings, presented its case against Miller to another

grand jury. Fox and Arbogast again testified, though Miller alleges this time only

Fox provided false information. On May 24, that grand jury indicted Miller for

the same counts of tampering with evidence as did the February 2001 grand jury,

but not for kidnaping, conspiracy, or murder.

      In May 2002, then, Miller faced two outstanding indictments—one from the

February 2001 and one from the May 2002 grand jury proceedings. On May 24,

assistant district attorney Spiers filed a nolle prosequi 1 and dismissed the




      1
        A nolle prosequi represents a “legal notice that a . . . prosecution has
been abandoned.” Black’s Law Dictionary 1074 (8th ed. 2004).

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conspiracy, murder, and kidnaping charges against Miller. The tampering counts,

however, remained.

      Still attempting to locate enough evidence to convict Miller of Mrs.

Hossencofft’s murder, on February 12, 2003 Fox prepared an affidavit in support

of a search warrant for Miller’s house. Fox sought the warrant to search the

house for “any and all tapes containing conversations between Plaintiff and his

psychic, Cynthia Hess.” Aplt. App. at 1197 (brackets omitted). Defendant Spiers

approved the affidavit over the phone. The affidavit contained allegedly false

information although Miller does not contend Arbogast provided the false

information or withheld any exculpatory evidence.

      Miller Pleads to Attempted Tampering with Evidence

      On July 16, 2003, Miller pleaded no contest to three counts of attempted

tampering with evidence—the counts related to his attempt to eat the business

cards on February 12, 2001. In consideration for his plea, the state dropped the

two other tampering counts. On October 8, Miller received a suspended sentence

of 364 days for attempted tampering with evidence.

                                    II. Analysis

      We review the district court’s grant of summary judgment de novo using

the same standard applied by the district court. Croy v. Cobe Labs., Inc., 345

F.3d 1199, 1201 (10th Cir. 2003). Summary judgment is appropriate only when

“there is no genuine issue as to any material fact and . . . the moving party is

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entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Bones

v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). Concluding no

genuine issue of material fact existed, the district court resolved summary

judgment as a matter of law, ruling in favor of Defendants on statute of

limitations and qualified immunity grounds.

      A. District Court’s Characterization of Miller’s Suit

      In analyzing Defendants’ summary judgment motions, the district court

interpreted Miller’s complaint as stating five separate causes of action: (1) a

Fourth Amendment violation related to the December 2000 search warrant; (2) a

Fourth Amendment violation related to Miller’s arrest on February 12, 2001; (3) a

Fourteenth Amendment violation regarding the February 2001 grand jury

proceedings; (4) a Fourteenth Amendment violation regarding the May 2002

grand jury proceedings; and (5) a Fourth Amendment violation related to the

February 2003 search warrant. The district court concluded the first three claims

were barred by New Mexico’s three-year statute of limitations for personal injury

suits. And on the remaining two claims, the court concluded Miller failed to

overcome Defendants’ qualified immunity defense. Notably, the court determined

that Miller’s complaint failed to assert a cause of action for malicious

prosecution, and even if it had, the claim would be precluded because Miller

could not demonstrate a favorable termination on the tampering charges. On this

latter conclusion, we disagree.

                                         -7-
      Miller argues the district court erred in failing to recognize that his

complaint, rather than alleging five separate claims, stated but one single claim

under a malicious prosecution theory. He analogizes his case to our decision in

Robinson v. Maruffi, 895 F.2d 649, 654 (10th Cir. 1990), where a § 1983 plaintiff

alleged a “conspiracy . . . to cause his malicious prosecution.” Miller’s allegation

accuses Defendants of conspiring to fabricate probable cause to implicate him in

Mrs. Hossencofft’s kidnaping and murder, which resulted in his seven-week long

confinement. 2

      Because Miller’s confinement was preceded by an arrest pursuant to a

warrant, an analogous cause of action is indeed malicious prosecution, grounded

in the Fourth Amendment guarantee to be free from unreasonable seizures. See

Wilkins v. DeReyes, 528 F.3d 790, 797–99 (10th Cir. 2008), cert. denied, 129 S.

Ct. 1526 (2009). In disputing the existence of probable cause to support his arrest

warrant, Miller challenges the institution of legal process against him. He also

challenges the 2001 and 2002 indictments, obtained after allegedly false

testimony by the Defendants at the respective grand jury proceedings, thereby

      2
          In particular, in response to questioning from the panel at oral argument,
Miller disclaimed the notion that his suit was pursuing a number of separate
claims. Rather, Miller argued the complaint alleged a single claim the Defendants
engaged in a “conspiracy to violate [his] constitutional rights. . . . [His] Due
Process [rights] and several ones under the Fourth Amendment.” Oral Arg. at
5:49–6:06. Miller maintains that, in essence, his single § 1983 claim aggregated
all the instances of alleged constitutional violations by the Defendants and the
closest tort analog for his suit was a malicious prosecution claim. Id. at
6:34–6:58.

                                          -8-
implicating his Fourteenth Amendment due process rights. Thus as Miller

apparently contends, we see this case as a single Fourth and Fourteenth

Amendment malicious prosecution claim. See Novitsky v. City of Aurora, 491

F.3d 1244, 1258 (10th Cir. 2007) (noting that a malicious prosecution claim can

be grounded in both the Fourth and Fourteenth Amendments); Pierce v. Gilchrist,

359 F.3d 1279, 1285–86 (10th Cir. 2004) (“The initial seizure is governed by the

Fourth Amendment, but at some point after arrest, and certainly by the time of

trial, constitutional analysis shifts to the Due Process Clause.”).

      Miller’s allegations that the February 2001 arrest warrant and the

subsequent prosecution for murder, conspiracy, and kidnaping were not supported

by probable cause are sufficient, at least at this stage, to maintain his malicious

prosecution claim. Miller has not been consistent in explaining the legal grounds

for his claim, and as a result, the district court’s analysis is understandable.

Nevertheless, the district court reached an erroneous conclusion regarding the

character of Miller’s malicious prosecution claim and therefore summary

judgment was inappropriate.

      B. Malicious Prosecution Theory as a Basis for Miller’s § 1983 Claim

      With this background in mind, we turn to Miller’s claim properly

characterized as a malicious prosecution conspiracy by the Defendants. Under

our cases, a § 1983 malicious prosecution claim requires proof of the following

elements: (1) the defendant caused the plaintiff’s continued confinement or

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prosecution; (2) the original action terminated in favor of the plaintiff; (3) no

probable cause supported the original arrest, continued confinement, or

prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained

damages. Novitsky, 491 F.3d at 1258; see also Wilkins, 528 F.3d at 799. At this

point, the primary issue appears to be whether Miller satisfied the favorable

termination element.

      The district court concluded that although Miller did not allege a malicious

prosecution by the Defendants, if he had, such a claim would be barred by a lack

of a favorable termination on the attempted tampering charges. Miller, as a

foundation of his malicious prosecution claim, challenges as unlawful his

February 12, 2001 arrest, after which he spent seven weeks in custody. It is

unclear, however, whether Miller’s complaint contends the attempted tampering

charges were unlawfully initiated or prosecuted. Nor does Miller make clear

whether the attempted tampering charges were part of the Defendants’ conspiracy

to maliciously prosecute him.

      For purposes of this appeal, we assume Miller claims the Defendants only

conspired to prosecute him for the murder and kidnaping offenses without

probable cause. Allowing Miller to attack only these charges in his malicious

prosecution claim is entirely consistent with the common law of malicious

prosecution, which allows a plaintiff to challenge prosecutions on a charge-by-

charge basis. E.g., Kossler v. Crisanti, 564 F.3d 181, 188 (3d Cir. 2009) (“[T]he

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favorable termination of some but not all individual charges does not necessarily

establish the favorable termination of the criminal proceeding as a whole.”);

Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007)

(“[P]robable cause to believe an individual committed one crime—and even his

conviction of that crime—does not foreclose a malicious prosecution claim for

additionally prosecuting the individual on a separate charge.”). Viewed in this

light, Miller’s convictions for attempted tampering with evidence do not

necessarily foreclose his malicious prosecution claim concerning the charges that

were ultimately dismissed—that claim challenges the murder and kidnaping

prosecutions and may remain viable even though Miller admitted to attempting to

tamper with evidence. 3

      But even so, if the alleged conspiracy by the Defendants included the

fabrication of an evidence tampering claim, it is inconsistent for Miller to plead

no contest to attempted tampering with evidence—evidence that may have been

relevant to the allegedly fabricated charges of murder and kidnaping. His legal

      3
         For this reason, with respect to Miller’s claim regarding the murder,
conspiracy, and kidnaping charges, we cannot conclude—at this stage—that there
was no favorable termination. In particular, after the May 2002 grand jury
indicted Miller on several counts of tampering with evidence, the prosecutor
dismissed an earlier indictment containing the same counts in addition to the
murder, conspiracy, and kidnaping charges. “To decide whether a nolle prosequi
constitutes a favorable termination, we look to the stated reasons for the dismissal
as well as to the circumstances surrounding it in an attempt to determine whether
the dismissal indicates the accused’s innocence.” Wilkins, 528 F.3d at 803. A
bare dismissal, without more, is not indicative of innocence and the plaintiff has
the burden of proving a favorable termination. Id.

                                        -11-
theories are premised on an alleged conspiracy to maliciously prosecute—but his

plea repudiates that concept by accepting charges brought pursuant to that

conspiracy. 4 In other words, since Miller ultimately entered no contest pleas to

some of the charges in the indictments, how can there be a malicious prosecution

claim sounding in a single conspiracy? Why would Miller destroy evidence if he

had committed no crime?

      The record before us does not permit a definitive conclusion about why the

murder and kidnaping charges were dismissed and how the dismissal is related to

the tampering charges. Further, the parties did not have the opportunity to

address this particular element in their arguments at the district court. It could be

Miller’s attempted tampering with evidence contributed to the dismissal. In such

a case, Miller’s claim may be precluded. Wilkins, 528 F.3d at 803–04 (noting that

misconduct by a § 1983 claimant may turn a nolle prosequi into an unfavorable

termination). Similarly, if Miller’s claim alleges the Defendants’ conspiracy

included wrongfully instituting and pursuing the tampering charges, it is possible

that Heck v. Humprey, 512 U.S. 477 (1994), may operate to bar Miller’s claim

since the lawsuit would then impugn the validity of his conviction on those

charges.



      4
        New Mexico defines “conviction” to include pleas of no contest. See
Howard v. Dickerson, 34 F.3d 978, 981 n.2 (10th Cir. 1994) (citing N.M. Stat.
§ 30-1-11).

                                         -12-
      Alternatively, the prosecution’s case against Miller may not have been

supported by probable cause. Wilkins, 528 F.3d at 804 (stating that in such a

circumstance a dismissal may be indicative of innocence and thereby constitute a

favorable termination). Because neither the parties’ arguments nor the record

presents a definitive answer to this question, we must remand this issue for

further consideration by the district court. See Evers v. Regents of Univ. of Colo.,

509 F.3d 1304, 1309–10 (10th Cir. 2007) (stating that “[i]t would be unfair to

affirm a summary judgment against a plaintiff for lack of evidence of an element

of the cause of action unless the defendant has clearly challenged that lack of

evidence in district court” and therefore refusing to affirm the grant of summary

judgment on that new ground).

      In sum, the district court must, in the first instance, determine the particular

confines of Miller’s malicious prosecution claim. Specifically, the court should

address which charges Miller contends were either without probable cause or

were improperly prosecuted, and what specific conduct by the Defendants is

included within this singular claim. Further, the court should inquire into (1)

whether Miller’s attempted tampering by destroying the business cards bore upon

the prosecutor’s ultimate decision to dismiss the murder, conspiracy, and

kidnaping charges, or (2) whether the tampering charges are integral to the

alleged conspiracy by the Defendants such that his § 1983 claim would impugn




                                         -13-
the validity of his tampering convictions. If Miller’s conduct did in fact result in

the nolle prosequi, then Miller’s claim may very well be precluded.

      C. Statute of Limitations

      Finally, we must note that in granting summary judgment to the

Defendants, the district court concluded that three of Miller’s claims were barred

by the statute of limitations: (1) the Fourth Amendment claim arising from the

December 2000 search warrant; (2) the Fourth Amendment claim arising from the

February 12, 2001 arrest; and (3) the Fourteenth Amendment claim arising from

the February 2001 grand jury proceedings. While these conclusions may have

been correct with respect to these claims as separate violations, because we

construe Miller’s § 1983 complaint to state a single claim for malicious

prosecution, the accrual analysis is different.

      A malicious prosecution claim accrues, at the earliest, when favorable

termination occurs. Mondragon v. Thompson, 519 F.3d 1078, 1083 (10th Cir.

2008). Here, the allegedly favorable termination occurred when the prosecutor

filed the nolle prosequi as to the conspiracy and kidnaping charges on May 24,

2002. Miller filed this action on May 24, 2005—within the applicable three-year

statute of limitations for civil rights actions under the applicable New Mexico

statute. See N.M. Stat. Ann. § 37-1-8 (1978); N.M.R.A. 1-006-A; Mondragon,

519 F.3d at 1082. Thus, Miller’s malicious prosecution action is timely.




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                               III. Conclusion

     For the foregoing reasons, we VACATE the district court’s grant of

summary judgment and REMAND to the district court for further proceedings.

                                   Entered for the Court

                                   Timothy M. Tymkovich
                                   Circuit Judge




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