PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANTHONY LAMBERT, SR.; MARION
KNIGHT LAMBERT,
Plaintiffs-Appellants,

v.

BRENDA G. WILLIAMS, individually
and in her official capacity as a
Social Worker; VELVEETA R. REID,
individually and in her official
capacity as Social Worker; DARLENE
REID, individually and in her official
capacity as Social Worker; ALICE E.
STALLINGS, individually and in her
official capacity as Service
                                                                 No. 99-1819
Supervisor; VIOLA SPIVEY,
individually; WILLIE BINES,
individually; GWENDOLYN C.
COLEMAN, individually and in her
capacity as Director, Pasquotank
County Department of Social
Services; PASQUOTANK COUNTY
DEPARTMENT OF SOCIAL SERVICES;
PASQUOTANK COUNTY BOARD OF
SOCIAL SERVICES; PASQUOTANK
COUNTY, NORTH CAROLINA; BOARD OF
COMMISSIONERS, Pasquotank County,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, Chief District Judge.
(CA-98-9-2-BO)
Argued: April 7, 2000

Decided: August 7, 2000

Before MOTZ, Circuit Judge, Samuel Grayson WILSON,
Chief United States District Judge for the
Western District of Virginia, sitting by designation, and
Gerald Bruce LEE, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilson wrote the opin-
ion, in which Judge Motz and Judge Lee joined.

_________________________________________________________________

COUNSEL

ARGUED: Lawton P. Cummings, Student Counsel, Appellate Litiga-
tion Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellants. Coleman M. Cowan, WOMBLE,
CARLYLE, SANDRIDGE & RICE, P.L.L.C., Raleigh, North Caro-
lina; Thomas Giles Meacham, Jr., NORTH CAROLINA ATTOR-
NEY GENERAL'S OFFICE, Raleigh, North Carolina, for Appellees.
ON BRIEF: Steven H. Goldblatt, Director, Nicole J. Williams, Stu-
dent Counsel, Appellate Litigation Program, GEORGETOWN UNI-
VERSITY LAW CENTER, Washington, D.C., for Appellants. Robert
H. Sasser, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,
Raleigh, North Carolina, for Appellees Williams, et al.

_________________________________________________________________

OPINION

WILSON, Chief District Judge:

Appellants Anthony Lambert, Sr., and Marion Knight Lambert
("the Lamberts") appeal from the district court's order dismissing
their 42 U.S.C. § 1983 action. In an earlier decision, we held that res
judicata barred all claims asserted by the Lamberts, with the excep-

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tion of a claim for malicious prosecution. See Lambert v. Williams,
No. 98-2070 (4th Cir. Dec. 29, 1998). The district court dismissed on
remand, holding that the Lamberts failed to state a claim against the
appellees sued in their official capacities and extending qualified
immunity to the appellees sued in their individual capacities. We find
that the Lamberts have not stated a viable claim under § 1983, and
therefore affirm.

I.

The Lamberts, proceeding pro se, filed this§ 1983 action challeng-
ing child abuse and neglect proceedings brought against them by
Pasquotank County, North Carolina officials. The Lamberts named
various state and local government officials in their individual and
official capacities (collectively, the "individual appellees"),1 in addi-
tion to the Pasquotank County Department of Social Services, the
Pasquotank County Board of Social Services, and Pasquotank County
(collectively, the "county appellees").

The Lamberts alleged that on April 23, 1992, appellees Gwendolyn
Coleman and Brenda Williams filed a juvenile petition in the county
district court alleging that the Lamberts were abusing and neglecting
their two children. County officials removed the children from the
Lamberts' custody on an emergency basis on that day. On February
27, 1995, the county district court resolved the matter in the Lam-
berts' favor and restored to them custody of their children.

The Lamberts, proceeding pro se, filed this case in February 1998
in the U.S. District Court for the Eastern District of North Carolina.
Their amended complaint alleged that from April 1992, when the
county officials filed the juvenile petition, until February 1995, when
the matter was resolved in the Lamberts' favor, the appellees con-
spired to deprive the Lamberts of the custody, care, and management
of their children. The complaint set forth little in the way of specific
_________________________________________________________________
1 The individual appellees are North Carolina Guardian Ad Litem Pro-
gram Supervisor Willie Bines; District Administrator Viola Spivey;
Social Workers Brenda Williams, Velveeta Reid, and Darlene Reid;
County Supervisor Alice Stallings; and former Director of Pasquotank
County Department of Social Services Gwendolyn Coleman.

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factual allegations. Instead, it concluded without elaboration that the
underlying proceedings were "malicious" and baseless, that the appel-
lees "knew or should have known" that the allegations were untrue,
and that the appellees concealed exculpatory evidence, fabricated evi-
dence, made false statements under oath, and failed to investigate the
Lamberts' claim of innocence. The Lamberts also alleged that the
appellees were motivated by racial animus (the Lamberts are African-
American) and a desire to obtain increased federal funding for the
county Department of Social Services when they brought and pursued
the juvenile petition. With respect to the county appellees, the Lam-
berts alleged that they acted with "deliberate indifference" by failing
to train the individual appellees in the proper handling of child abuse
and neglect proceedings.

The Lamberts asserted numerous legal bases for their civil rights
action, including the First, Fourth, Ninth, and Fourteenth Amend-
ments, 42 U.S.C. §§ 1983 and 1985, and the North Carolina Constitu-
tion. Although the Lamberts did not specifically set forth a malicious
prosecution cause of action, the district court construed the amended
complaint to include such a claim.

The district court initially dismissed the entire action as barred by
res judicata, since the Lamberts brought these identical allegations in
state court in 1994 and the state court dismissed the case on its merits.
The Lamberts appealed the district court's res judicata ruling and,
with the exception of the Lamberts' malicious prosecution claim, we
affirmed. Regarding the malicious prosecution claim, we noted that
the Lambert's state court action was dismissed before the custody
proceedings were terminated in the Lamberts' favor; consequently,
the malicious prosecution claim was not ripe during the Lamberts'
state court action, because favorable termination is an element of the
common law malicious prosecution tort. See Lambert v. Williams, No.
98-2070, slip op. at 2-3.

On remand, the district court granted the appellees' supplemental
motions to dismiss, finding that the individual appellees were entitled
to qualified immunity on the remaining claim and that the Lamberts'
allegations did not show that the county appellees were guilty of
constitutionally-cognizable misconduct. The Lamberts filed a timely

                    4
appeal, and this court appointed counsel for the Lamberts for pur-
poses of the appeal.

II.

The only remaining claim in this case is one the Lamberts now
style a "§ 1983 malicious prosecution" claim. There is at present an
"embarrassing diversity of judicial opinion" over the composition, or
even existence, of a claim for "malicious prosecution" founded in
§ 1983. Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992), rev'd,
510 U.S. 266 (1994). The Lamberts contend that a plaintiff can estab-
lish a prima facie case for such a claim by proving (1) each element
of the common law tort of malicious prosecution, and (2) the depriva-
tion of some constitutional right. Construed liberally, the Lamberts'
amended complaint satisfied this standard by alleging (1) the common
law elements of malicious prosecution and (2) deprivations of their
Fourteenth Amendment rights to "family integrity" and equal protec-
tion. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 503
(1977) (ordinance limiting permissible occupancy of dwelling to
specified categories of related individuals violates due process right
to family integrity); Oyler v. Boles, 368 U.S. 448, 455-56 (1962)
(prosecution on the basis of race constitutes an equal protection viola-
tion); Haines v. Kerner, 404 U.S. 519, 520 (1972) (federal courts
should construe pro se pleadings liberally).

The Lamberts' amended complaint also alleged independent viola-
tions of their equal protection and family integrity rights. However,
we found those claims to be barred by res judicata in our earlier rul-
ing. Understood in light of this disposition, the Lamberts essentially
contend now that § 1983 enables them to bring a claim for malicious
prosecution that is somehow distinct from the underlying constitu-
tional violation, though it incorporates constitutional elements. We
now hold that § 1983 does not empower a plaintiff to bring a claim
for malicious prosecution simpliciter. What is conventionally referred
to as a "§ 1983 malicious prosecution" action is nothing more than a
§ 1983 claim arising from a Fourth Amendment violation. The Lam-
berts have not, however, raised a Fourth Amendment argument in this
appeal. The theory that the Lamberts do set forth does not, in light of
our earlier res judicata ruling, state a claim for relief under § 1983.

                    5
The common law tort of malicious prosecution is well-established:
a prima facie case of malicious prosecution must include (1) the initi-
ation or maintenance of a proceeding against the plaintiff by the
defendant; (2) termination of that proceeding favorable to the plain-
tiff; (3) lack of probable cause to support that proceeding; and (4) the
defendant's malice. See W. Keeton, D. Dobbs, R. Keeton, & D.
Owen, Prosser and Keeton on Law of Torts 874 (5th Ed. 1984). Com-
mon law malicious prosecution is not itself redressable under § 1983,
however, since § 1983 is not "a source of substantive rights, but a
method for vindicating federal rights elsewhere conferred by those
parts of the United States Constitution and federal statutes that it
describes." Baker v. McCollan, 443 U.S. 137, 144 (1979); see also
United States v. Lanier, 520 U.S. 259, 272 (1997) ("[C]ivil liability
under § 1983 . . . may be imposed for deprivation of a constitutional
right if, but only if, in light of pre-existing law the unlawfulness
[under the Constitution] is apparent.").

Initially, some lower courts, including this Court, held that a plain-
tiff could prove a violation of substantive due process by proving the
common law elements of malicious prosecution and state action. See,
e.g., Goodwin v. Metts, 885 F.2d 157, 160 n.1 (4th Cir. 1992). The
Supreme Court rejected this approach, however, in Albright v. Oliver,
510 U.S. 266 (1994). Albright involved a§ 1983 claim that the peti-
tioner styled a "malicious prosecution" claim, in which the petitioner
contended that his "`liberty interest' to be free from criminal prosecu-
tion except upon probable cause" constituted a violation of substan-
tive due process. 510 U.S. at 268. The Albright Court did not produce
a majority opinion, but a majority of justices agreed that the right to
be free from prosecution without probable cause was not a substantive
due process right, but rather was a violation of the petitioner's Fourth
Amendment right to be free from unreasonable seizures. See id. at
271 (plurality); id. at 275 (Scalia, J., concurring); id. at 280 (Kennedy,
J., concurring in judgment and joined by Thomas, J.); id. at 281
(Ginsburg, J., concurring); id. at 288-89 (Souter, J., concurring in
judgment). The plurality noted specifically that"substantive due pro-
cess may not furnish the constitutional peg on which to hang [a mali-
cious prosecution] `tort.'" Id. at 271 n.4. Since the petitioner in
Albright did not raise a Fourth Amendment argument, the Court did
not have occasion to reach the Fourth Amendment issue in its hold-
ing. Thus, although the various opinions in Albright "add[ ] up to a

                     6
fairly strong sentiment against constitutionalizing malicious prosecu-
tion," 1A Martin A. Schwartz, Section 1983 Litigation § 3.20, at 322
(3d ed. 1997), the decision itself ultimately does not reach the ques-
tion.

In the wake of Albright, the courts of appeals have diverged, some
finding that § 1983 does not provide a malicious prosecution cause of
action, some that it does, some that it might. The Third Circuit has
adopted a variation of the theory offered by the Lamberts, see Torres
v. McLaughlin, 163 F.3d 169, 172 (3d Cir. 1998) ("Albright stands for
the broader proposition that a section 1983 [malicious prosecution]
claim may be based on a constitutional provision other than the
Fourth Amendment."), but no other circuit has followed suit. At least
two circuits have indicated that the common law elements of mali-
cious prosecution may establish a Fourth Amendment violation with
respect to defendants acting under color of state law. See, e.g., Kerr
v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999); Cervantes v. Jones, 188
F.3d 805, 808-09 (7th Cir. 1999). Others have held that the malicious
prosecution claim under § 1983 is properly understood as a Fourth
Amendment claim for unreasonable seizure which incorporates cer-
tain elements of the common law tort. See, e.g., Britton v. Maloney,
196 F.3d 24, 28-29 (1st Cir. 1999); Uboh v. Reno , 141 F.3d 1000,
1003 (11th Cir. 1998); Spiegel v. Rabinovitz, 121 F.3d 251, 256 (7th
Cir. 1997); Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir. 1997); Taylor
v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996).

We adopted the latter view in Brooks v. City of Winston-Salem, 85
F.3d 178 (4th Cir. 1996). The appellant in Brooks alleged that he had
been arrested and prosecuted on state criminal charges in violation of
the Fourth, Fifth, and Fourteenth Amendments, because his arrest was
not supported by probable cause and the authorities continued his
prosecution after it was apparent that he was innocent. We found that
those claims were "analogous to two common-law causes of action --
false arrest and malicious prosecution," id. at 181 (citations omitted),
and proceeded to consider the appellant's constitutional claims in
light of the elements of those common law torts. However, although
we styled the claim as a § 1983 malicious prosecution claim and
incorporated common law elements, we did not treat the claim as sep-
arate and distinct from the appellant's constitutional allegations.2 We
_________________________________________________________________
2 We found, for instance, that malice was not an element of the § 1983
claim since the reasonableness of a seizure under Fourth Amendment

                    7
made it clear, rather, that the foundation for his claim was "a seizure
that was volative of the Fourth Amendment." Id. at 184.

By incorporating the common law into our § 1983 analysis, we fol-
low a consistent line of authority which has looked to common law
torts bearing similarity to the constitutional rights at issue and incor-
porated into those claims common law elements of damages, prereq-
uisites for recovery, and immunities. See, e.g., Heck v. Humphrey,
512 U.S. 477, 483-84 (1994) (finding legality of confinement claim
analogous to 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 § 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 refer-
ence to common law); Imbler v. Pachtman, 424 U.S. 409, 422-29
(1976) (incorporating common law principle of prosecutorial immu-
nity). The purpose of incorporating common law principles into
§ 1983 is not to create new causes of action in addition to those
already found within the Constitution and federal statutes covered by
§ 1983. Baker v. McCollan makes this clear enough. See 443 U.S. at
144. Rather, federal courts incorporate the common law into § 1983
in recognition of the fact that § 1983 was designed to create a "special
species of tort liability," Imbler, 424 U.S. at 417, founded on rights
originating in the Constitution and certain federal statutory law, and
that:

          over 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 dam-
          ages and the prerequisites for their recovery, provide the
          appropriate starting point for the inquiry under§ 1983 as
          well.
_________________________________________________________________
jurisprudence "should be analyzed from an objective perspective."
Brooks, 85 F.3d at 184 n.5.

                     8
Carey, 435 U.S. at 257-58. Our analysis in Brooks, understood in
light of these precedents, makes clear that there is no such thing as
a "§ 1983 malicious prosecution" claim. What we termed a "malicious
prosecution" claim in Brooks is simply a claim founded on a Fourth
Amendment seizure that incorporates elements of the analogous com-
mon law tort of malicious prosecution -- specifically, the requirement
that the prior proceeding terminate favorably to the plaintiff. See
Brooks, 85 F.3d at 183.3 It is not an independent cause of action.

The Lamberts have not raised a Fourth Amendment claim on
appeal. They argue instead that they have stated a§ 1983 malicious
prosecution claim by alleging the common law elements of malicious
prosecution and the deprivation of their Fourteenth Amendment rights
to family integrity and equal protection. When we remanded the case
to the district court and left open the Lamberts' malicious prosecution
claim, we did not leave open, under the guise of malicious prosecu-
tion, constitutional claims barred by res judicata. We left open, at
most, a § 1983 claim grounded in the Fourth Amendment.4 Since the
_________________________________________________________________
3 As we noted in Brooks, the significance of the favorable termination
element is not only that it constitutes a prerequisite for recovery, but also
that it establishes the time from which the claim accrues for purposes of
determining whether the statute of limitations has run. See Brooks, 85
F.3d at 183 (citing Heck, 512 U.S. at 483; Morrison v. Jones, 551 F.2d
939, 940-41 (4th Cir. 1977)).
4 Admittedly, our earlier opinion in this matter exhibits some ambigu-
ity. The opinion begins by noting that the Lamberts"appeal from the dis-
trict court's order dismissing their 42 U.S.C.A.§ 1983 action as barred
by res judicata. As to all but the malicious prosecution claim, we affirm
on the reasoning of the district court." Lambert v. Williams, No. 98-2070,
slip op. at 2. This introduction could be read to suggest that we were
leaving open a § 1983 cause of action centered on a Fourth Amendment
violation, and counsel for the Lamberts suggested this interpretation at
oral argument. In the remainder of the opinion, however, we cite not to
Brooks or any other § 1983 decision in discussing the favorable termina-
tion requirement, but rather to two North Carolina cases that involve
application of the North Carolina malicious prosecution tort. See id. at
3 (citing Hogan v. Cone Mills Corp., 337 S.E.2d 477, 482 (N.C. 1985);
Best v. Duke Univ., 448 S.E.2d 506, 510 (N.C. 1994)).

Accepting the Lamberts' reading of the introduction of our earlier
opinion in light of these North Carolina citations, it would follow that the

                    9
Lamberts have not raised such a claim, and the claim they raise is not
a viable one, we find that the Lamberts have not stated a claim for
relief under § 1983, and affirm.5

AFFIRMED
_________________________________________________________________

Lamberts could bring the North Carolina malicious prosecution tort in
federal court under § 1983. This is obviously not, however, what we had
in mind. A fair reading of our earlier opinion in light of our discussion,
supra, indicates either that we left open only the Lamberts supplemental
North Carolina claim for malicious prosecution, or that we left that claim
open in addition to a Fourth Amendment claim under§ 1983 that we
styled, for purposes of convenience, as a "malicious prosecution" claim.
Since the Lamberts have not raised either the North Carolina malicious
prosecution tort or the Fourth Amendment in this appeal, we affirm the
district court under either interpretation of our earlier opinion.

The Lamberts have filed a motion for leave to submit a post-argument
statement in this matter, which they maintain demonstrates that we
remanded a § 1983 cause of action. Since we have made that assumption
in the disposition of this opinion, we need not grant the Lamberts'
motion.

5 Having found that the Lamberts have not raised a viable § 1983 claim,
we need not determine whether any rights the Lamberts have asserted
were "clearly established" for purposes of qualified immunity. See
DiMeglio v. Haines, 45 F.3d 790, 799 (4th Cir. 1995) ("In many cases
where a defendant has asserted qualified immunity, dismissal or even an
award of summary judgment may be obviously warranted, based upon
existing law, without the court ever ruling on the qualified immunity
question."); Gordon v. Kidd, 971 F.2d 1087, 1093 (4th Cir. 1992) ("In
analyzing the appeal of a denial of summary judgment on qualified
immunity grounds, it is necessary first to identify the specific constitu-
tional right allegedly violated, then to inquire whether at the time of the
alleged violation it was clearly established.").




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