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.

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

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COUNSEL

ARGUED: Lawton P. Cummings, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER,

Washington, D.C., for Appellants. Coleman M. Cowan, WOMBLE,

CARLYLE, SANDRIDGE & RICE, P.L.L.C., Raleigh, North Carolina; Thomas Giles Meacham, Jr., NORTH CAROLINA ATTORNEY GENERAL'S OFFICE, Raleigh, North Carolina, for Appellees.

ON BRIEF: Steven H. Goldblatt, Director, Nicole J. Williams, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY 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.

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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 challenging 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 addition 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 Lamberts' 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 conspired to deprive the Lamberts of the custody, care, and management

of their children. The complaint set forth little in the way of specific

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1 The individual appellees are North Carolina Guardian Ad Litem Program 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 appellees "knew or should have known" that the allegations were untrue,

and that the appellees concealed exculpatory evidence, fabricated evidence, 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 AfricanAmerican) 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 Lamberts 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 Amendments, 42 U.S.C. §§ 1983 and 1985, and the North Carolina Constitution. 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

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appeal, and this court appointed counsel for the Lamberts for purposes 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 establish a prima facie case for such a claim by proving (1) each element

of the common law tort of malicious prosecution, and (2) the deprivation 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 protection. 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 violation); Haines v. Kerner, 404 U.S. 519, 520 (1972) (federal courts

should construe pro se pleadings liberally).

The Lamberts' amended complaint also alleged independent violations of their equal protection and family integrity rights. However,

we found those claims to be barred by res judicata in our earlier ruling. 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 constitutional 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 Lamberts 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.

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The common law tort of malicious prosecution is well-established:

a prima facie case of malicious prosecution must include (1) the initiation or maintenance of a proceeding against the plaintiff by the

defendant; (2) termination of that proceeding favorable to the plaintiff; (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). Common 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 plaintiff 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 petitioner styled a "malicious prosecution" claim, in which the petitioner

contended that his "`liberty interest' to be free from criminal prosecution except upon probable cause" constituted a violation of substantive 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 process may not furnish the constitutional peg on which to hang [a malicious 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 holding. Thus, although the various opinions in Albright "add[ ] up to a

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fairly strong sentiment against constitutionalizing malicious prosecution," 1A Martin A. Schwartz, Section 1983 Litigation § 3.20, at 322

(3d ed. 1997), the decision itself ultimately does not reach the question.

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 malicious 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 certain 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 separate and distinct from the appellant's constitutional allegations.2 We

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2 We found, for instance, that malice was not an element of the § 1983

claim since the reasonableness of a seizure under Fourth Amendment

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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 follow a consistent line of authority which has looked to common law

torts bearing similarity to the constitutional rights at issue and incorporated into those claims common law elements of damages, prerequisites 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 reference to common law); Imbler v. Pachtman, 424 U.S. 409, 422-29

(1976) (incorporating common law principle of prosecutorial immunity). 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 damages and the prerequisites for their recovery, provide the

appropriate starting point for the inquiry under§ 1983 as

well.

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jurisprudence "should be analyzed from an objective perspective."

Brooks, 85 F.3d at 184 n.5.

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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 common 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 prosecution, constitutional claims barred by res judicata. We left open, at

most, a § 1983 claim grounded in the Fourth Amendment.4 Since the

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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 ambiguity. The opinion begins by noting that the Lamberts"appeal from the district 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 termination 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

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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

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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 constitutional right allegedly violated, then to inquire whether at the time of the

alleged violation it was clearly established.").

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