                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                 FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-15400                ELEVENTH CIRCUIT
                                                             OCTOBER 22, 2010
                           Non-Argument Calendar
                                                                JOHN LEY
                         ________________________
                                                                 CLERK

                      D. C. Docket No. 06-22883-CV-JAL

EUGENE HUNTER, JR.,


                                                             Plaintiff-Appellant,

                                       versus

ROBERT E. MILLER,
MIAMI DADE SHERIFF'S OFFICE,
d.b.a. Metro Dade Police Department,


                                                          Defendants-Appellees.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                              (October 22, 2010)

Before TJOFLAT, HULL and FAY, Circuit Judges.

PER CURIAM:
       Appellant, a prisoner proceeding pro se, appeals the district court’s dismissal

of his complaint brought under 42 U.S.C. § 1983 to vindicate his rights under the

Fourth and Fourteenth Amendments.1 The court dismissed the complaint because,

although appellant alleged that appellee’s challenged conduct occurred before he

was arrested or legal process commenced, it constituted a tort action for malicious

prosecution.

       When, as here, a plaintiff alleges that his seizure occurred as part of the

institution of a criminal prosecution, the Fourth Amendment violation is analogous

to the tort of malicious prosecution. Whiting v. Traylor, 85 F.3d 581, 586 (11th

Cir. 1996). Id. at 586. In that appellant was convicted, he cannot establish an

essential element of the tort—that his prosecution terminated in his favor.2 His




       1
         As a preliminary matter, we decline to reconsider our previous determination that
Hunter’s appeal is timely because the district court did not enter its final judgment in a separate
document. See Fed. R. App. P. 4(a)(7)(A)(ii).
       2
          Under Florida law, to establish the tort of malicious prosecution, a plaintiff must
establish each of six elements:
        (1) an original judicial proceeding against the present plaintiff was commenced or
        continued; (2) the present defendant was the legal cause of the original
        proceeding; (3) the termination of the original proceeding constituted a bona fide
        termination of that proceeding in favor of the present plaintiff; (4) there was an
        absence of probable cause for the original proceeding; (5) there was malice on the
        part of the present defendant; and (6) the plaintiff suffered damages as a result of
        the original proceeding.

Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004).


                                                  2
complaint was therefore due to be dismissed.3

       Affirmed.




       3
         In light of this conclusion, we need not consider whether appellant’s claim was barred
by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

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