IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-41389

_______________

MILTON EVANS,

Plaintiff-Appellant,

VERSUS

WILLIAM S. BALL and DIANE STEADMAN,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________

March 12, 1999

Before DAVIS, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Milton Evans sued William Ball and Diane Steadman, alleging

common law malicious prosecution and constitutional violations

pursuant to Bivens v. Six Unknown Agents

, 403 U.S. 388 (1971). The

district court granted summary judgment in favor of Ball and

Steadman. Finding no error, we affirm.

I.

Ball and Steadman, Special Agents with the United States1 As part of his job, Evans would solicit citizens' comments about Forest

Service programs, write them down, and then either have the person making the

comment sign the written version or obtain that person's permission to have Evans

write the person's name on the sheet. Ball and Steadman suspected that Evans was

falsifying these comment sheets and using indiv i duals' names without their

permission in an attempt to increase the number of favorable comments.

2 The statute provides that

[w]hoever, in any matter within the jurisdiction of any department

of the United States knowingly and willfully falsifies, conceals or

covers up by any trick, scheme, or device a material fact, or makes

any false, fictitious or fraudulent statements or representations,

or makes or uses any false writing or document knowing the same to

contain any false, fictitious or fraudulent statement or entry,

sha ll be fined not more than $10,000 or imprisoned not more than

five years, or both.

3 Under Bivens

, a victim who has suffered a constitutional violation by a (continued...)

2 Forest Service, undertook an investigation of Evans, a Forest

Service employee, focusing on whether Evans was falsifying public

commen ts about Forest Service projects and activities. 1 Based on

information Ball and Steadman gathered, Evans was indicted on

eight counts of knowingly making and using a false document, a

violation of 18 U.S.C. § 1001. 2

Subject to a summons, Evans appeared in court to answer these

charges. He was released on his own recognizance with instructions

to report once a month to pretrial services. The indictment was

subsequently dismissed without prejudice on the government's

motion. The government claims it dismissed the indictment in

exchange for Evans's agreement to retire from the Forest Service;

Evans contends there was no such agreement.

Evans then sued Ball and Steadman, asserting a Bivens claim on

two grounds. 3 First, he alleged the agents violated his Fourth3 (...continued)

federal actor may recover damages in federal court. S ee Bivens

, 403 U.S. at 395-

97; McGuire v. Turnbo , 137 F.3d 321, 323 (5th Cir. 1998).

3 Amendment right “to be free from a prosecution that is not based on

probable cause.” Ball and Steadman, Evans averred, deliberately

provided false info rmation to, and withheld exculpatory evidence

from, federal prosecutors, violating this Fourth Amendment right.

Second, Evans argued that being summoned to appear in court to

answer the s e false charges, and having pre-trial restrictions

placed on him, violated his Fourth Amendment right “to be free from

unreasonable restraint and seizure th at is not based on probable

cause.” Evans also asserted a supplemental state law claim for

malicious prosecution.

On the state law maliciou s prosecution claim, Ball and

Stead man argued that the summary judgment evidence could not

establish that the prosecu tion had terminated in Evans's favor S S a

prerequisite to liability for mal icious prosecution. Ball and

Steadman contended that the government had dropped the claims

against Evans in exchange for a promise to retire from the Forest

Service. This “deal,” defendants argued, did not constitute

termination in Evans's favor.

The district court agreed that Evans had entered an “informal

agreement” with prosecutors under which he would retire in exchange

for dropping the charges. Because this resolution did not indicate

that Evans was not guilty of the charges, the court determined that4

his prosecution had not terminated in his favor and that he thus

could not establish malicious prosecution.

T he court also granted summary judgment on Evans's Biven s

claim. Determining that Evans had not alleged a violation of a

clearly established constitutional right, the court concluded that

Evans had failed to overcome the defendants' assertion of qualified

immunity.

II.

We revi ew a summary judgment d e novo

, applying the same

standard as did the district court. M el ton v. Teachers Ins. &

Annuity Ass'n of Am. , 114 F.3d 557, 559 (5th Cir. 1997). Summary

judgment is proper when the pleadings and summary judgment evidence

present no genuine issue of material fact and indicate that the

mo ving party is entitled to judgment as a matter of law. F E D

. R.

C IV

. P. 56(c); Celotex Corp. v. Catrett

, 477 U.S. 317, 322 (1986).

D isputed facts preclude summary judgment if the evidence is s uch

that a reasonable jury could return a verdict for the nonmovant.

Anderson v. Liberty Lobby, Inc.

, 477 U .S. 242, 248 (1986). In

determining whether summary judgment was appropriate, courts must

view the inferences to be reasonably drawn from the underlying

facts in the record in the light most favorable to the nonmovant.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.

, 475 U.S. 574,

587 (1986). We may neither weigh the evidence nor make credibility4 Under Texas law, malicious prosecution includes seven elements:

(1) prosecution against the plaintiff; (2) causation by the defendant;

(3) termination of the prosecution in the plaintiff's favor; (4) the plaintiff's

innocence; (5) the absence of probable cause for the proceedings; (6) malice in

filing the charge; and (7) damage to the plaintiff. Hart v. O'Brien , 127 F.3d

424, 451 (5th Cir. 1997), cert. denied , 119 S. Ct. 868 (1999).

5 determinations. Anderson , 477 U.S. at 248.

III.

Summary judgment was proper on the state law malicious

prosecution claim. Termination of the prosecution in the accused's

favor is an essential element, 4 and the summary judgment evidence,

which unequivocally indicates that Evans agreed to do something in

exchang e for the government's dropping the charges, does not

support a finding of favorable termination.

Evans asserts that the court erred in deciding that there was

insufficient record support for a finding that the prosecution

terminated in his favor, because there is evidence that his

retirement from the Forest Service was not part of the bargain he

struck. Evans insists that he did not agree to retire in exchange

for dropping the charges, but that he merely agreed not to advance

a defense under the Speedy Trial Act should the government seek to

reindict him.

The summary judgment evidence Evans poi nts to is his own

a ffidavit and that of his attorney, Claude Welch. Evans's

affidavit states, “ I was not about to resign as a part of an

agreement to drop criminal charges

. . . . I agreed only to waive6

any Speedy Trial rights I had if the government reindicted me.”

Welch's affidavit reflects that there was “an understanding” that

Evans would retire, but “there was no agreement,” and that “[t]he

only agreement that Mr. Evans made was that he would not raise the

Speedy Trial Act if the cases were dismissed.” Evans contends that

because the agreement did not involve even a tacit admission of

guilt, the prosecution did, in fact, terminate in his favor.

We disagree. This court has set a high standard for what

constitutes termination in the a ccused's favor. In T aylor v.

Gregg

, 3 6 F.3d 453, 455-56 (5th Cir. 1994), we held that a “pretrial diversion” SS an alternative to criminal prosecution that

diverts certain defendants from traditional criminal justice

processing into a program of supervision SS is not termination in the

defendant's favor, even if all criminal charges are dismissed. In

so holding, we noted that “[t]he Second Circuit stated that

proceedings are terminated in favor of the accused only when their

final disposition indicates that the accused is not guilty.” Id.

at 456 ( citing Singleton v. City of New York

, 632 F.2d 185, 193

(2d Cir. 1980)). We then declared that “[w]e agree with the Second

Circuit and adopt its holding and reasoning.” Id.

The rule in this circuit, then, is that proceedings terminate

in favor of the accused only when they affirmatively indicate that

he is not guilty. While Evans advocates the position that

favorable termination results when the dispos ition fails to7

indicate that the accused is guilty, the r easoning of T aylor

forecloses that position; the disposition must affirmatively

indicate a lack of guilt.

Under such a standard, Evans cannot demonstrate that the

criminal prosecution terminated in his favor. While he insists

that the agreement was not for him to retire, but simply for him to

waive his Speedy Trial Act arguments should the government reindict

him, he has admitted that he entered an agreement with prosecutors

under which they would dismiss the charges in exchange for

something

. Regardless of which version of the agreement is

correct, the disposition of the case does not affirmatively

indicate that Evans was not guilty.

Moreover, the evidence compels th e conclusion that the

agreement was for Evans to retire in exchange for dropping the

charges. Evans's attorney wrote the Acting Forest Supervisor that

the agreement was

[t]hat if the United States dismissed the indictment

against Milton Evans, that Milton Evans would retire from

the U.S. Forest Service no later than 90 days from the

date of his reinstatement to active duty with the Forest

Service AND if Milton Evans did not so retire that the

United States would have the option of reindicting Milton

Evans. In the event Milton Evans was reindicted by the

United States that he would not plead, as a defense to

the indictment, any defenses normally afforded a

defendant pursuant to the “ Speed [sic] Trial Act .”

(Emphasis in original.) Welch then wrote, “Yes, basically it was

understood that Milton Evans would retire.” These statements are

“smoking guns” that indicate that Evans agreed to retire in8

exchange for having charges dropped. A reasonable jury could not

find otherwise.

IV.

The district court correctly concluded that Evans's

allegations in support of his Bivens claim fail to overcome the defense of qualified immunity. Summary judgment was therefore

proper.

A.

Qualified immunity protects government officials performing

discretionary functions from civil liabili t y if their conduct

violates no clearly established statutory or constitutional right

of which a reasonable person would have known. S orenson v. Ferrie

,

134 F.3d 325, 327 (5th Cir. 1998). The Supreme Court has clarified

how courts should address a qualified immunity assertion, requiring

a two-pronged test. S ee Siegert v. Gilley

, 50 0 U.S. 226, 231-32

(1991).

Once a defendant pleads qualified immunity, t h e district

court first must determine whether, under curren t law, he has

alleged a constitutional violation at all. Id. The second prong

requires courts to make two separate inquiries: whether the

allegedly violated right was “clearly established” at the time of

the incident; and, if so, whether the defendant's c onduct was9

objectively unreasonable in light of the clearly established law.

Id. ; Hare v. City of Corinth , 135 F.3d 320, 326 (5th Cir. 1998).

We may not pretermit the first prong but must decide whether Evans

has alleged any constitutional violation before we may move to the

inquiries under the second prong. See, e.g., Quives v. Campbell

,

934 F.2d 668, 670 (5th Cir. 1991).

B.

Evans purports to have alleged two violations of his clearly

established constitutional rights. First, he claims the

defendants' actions violated his right to be free from unreasonable

seizures. He claims that the defendants' providing misleading

information led to an unreasonable sei zure that began when he

received a summons pursuant to F E D

. R. C RIM

. P. 9 to appear and

answer to criminal charges. The summons, he avers, was accompanied

by other restrictions on his liberty. In particular, he alleges

that he was fingerprinted, photographed, forced to sign a personal

re cognizance bond, and required to report regularly to pretrial

services, to obtain permission before leaving the state, and to

provide federal officers with financial and identifying

information. Taken together, Evans argues, the summons and these

liberty restrictions constituted a seizure that, because it was

based on false claims by Ball and Steadman, was unreasonable.

The district court held that an unreasonable seizure could not10

be grounds for abrogating Ball's and Steadman's qualified immunity

because Evans “failed to allege or show a seizure within the

meaning of the Fourth Amendment, or at a minimum, that the

'seizure' alleged [violated] a clearly established Constitutional

right.” We disagree that Evans failed to allege a Fourth Amendment

seizure, but we agree that, at the time of his seizure, the law was

not clearly established that the res trictions placed on him

constituted a seizure under the Fourth Amendment. Hence, the

restrictions were not a clearly established constitutional

violation, and the allegation of seizure cannot abrogate qualified

immunity.

1.

A summons, couple d with the additional liberty restrictions

that were imposed on Evans, may constitute a seizure under the

Fourth Amendment. In N esmith v. Taylor , 715 F.2d 194, 196 (5th

Cir. 1983), we expressly declined to decide whether a mere summons

backed by a threat of arrest could ever constitute a seizure. The

summons in the case at hand, however, was accompanied by liberty

restrictions so significant as to render Evans seized. In so

concluding, we are guided by the Second and Third Circuits, which

recently have held that accused individual s are seized when the

conditions of their pretrial release include restrictions such as

those imposed on Evans, particularly restrictions on the right to5 In holding that “the Fourth Amendment requires a judicial determination

of probable cause as a prerequisite to extended restraint of liberty following

arrest,” Gerstein

, 420 U.S. at 114, the Court stated, “Even pretrial release may

be accompanied by burdensome conditions that effect a significant restraint on

liberty. See, e.g., 18 U.S.C. §§ 3146(a)(2) . . . .” Id. The code provision

the Court cited permits pretrial rele ase with “restrictions on the travel

. . . of the person during the period of r elease.” 18 U.S.C. § 3146(a)(2)

(1970), revised and recodified at 18 U.S.C. § 3142(c)(1)(B)(iv) (1994)

(permitting “restrictions on

. . . travel”). Hence, the G erstein Court indicated

that the liberties protected by the Fourth Amendment are not limited to physical

detentions and include the accused's freedom to travel while on pretrial release.

11 interstate travel. S ee Gallo v. City of Philadelphia

, 161 F.3d

217, 222-23 (3d Cir. 1 998); Murphy v. Lynn , 118 F.3d 938, 946

(2d Cir.), cert denied

, 118 S. Ct. 1051 (1998). We are also informed by the intimation in Gerst ein v. Pugh , 420 U.S. 103, 114

(1975), that the right to interstate travel is addressable under

the Fourth Amendment. 5

We conclude, in light of these authorities, that Evans's

summons to appear in court, coupled with the requirements that he

obtain permission before leaving the state, report regularly to

pretrial services, sign a personal recognizance bond, and provide

federal officers with financial and identifying information,

diminished his liberty enough to render him seized under the Fourth

Amendment. Because he has asserted that his seizure was based on

false information provided by Ball and Steadman, he has alleged a

constitutional violation SS an unreasonable seizure, so the first

prong of Siegert is satisfied.

2.6 See Albright v. Oliver

, 510 U.S. 266, 279 (1994) (Ginsburg, J.,

concurring) (suggesting that a defendant released prior to trial on the condition

that he later appear before the court is still seized within the meaning of the

Fourth Amendment).

7 We do not address whether the decisions of other circuits have a bearing

on whether the law is “clearly established” in this circuit.

8 See Prather v. City of Louisville

, 85 F.3d 629 (6th Cir. 1996)

(unpublished) (table), 1996 U.S. App. LEXIS 14471 (6th Cir. May 10, 1996)

(No. 94-5634) (unpublished); De Hardit v. United States

, 224 F.2d 673 (4th Cir.

1955); Ducas v. Martin , 941 F. Supp. 1281, 1293 (D. Mass. 1996).

12 Under the second prong of Siegert , we must decide whether it

was clearly established, when Evans was seized, that the summons

and liberty restrictions to which he was subject constituted a

seizure. We conclude that the law at the time of Evans's seizure

was not clearly established to that effect.

This circuit has never considered the question whether a

s ummons plus additional liberty restrictions can constitute a

seizure, and we have expressly declined to answer the question

whether a summons, standing alone, is a seizure. S ee Nesmith

,

715 F.2d at 196. Although one Justice has opined on the subject, 6

the Supreme Court has left open the question whether a voluntary

response to an ar rest warrant, coupled with pre-trial travel

restrictions, is a seizure. S ee Albright v. Oliver

, 510 U.S. 266,

275 (1994).

Moreover, other courts 7 have found that a summons does not

implicate the prohibitio n of the Fourth Amendment against

unreasonable seizures, 8 and Murphy and Gallo SS the cases from other

circuits holding that a summons a ccompanied by interstate travel13

r estrictions may constitute a seizure SS had not been decided whe n

Evans's liberty was limit ed by the summons and restrictions.

Finally, in hinting that some types of interstate travel

restrictions could implicate Fourth Amendment liberties S S a

suggestion that lends support to our conclusion that Evans was

seized SS the Gerstein Court did not hold that simply requiring an

accused to obtain permission to leave the state constituted a

seizure, so that Co urt did not clearly establish that the

restrictions placed on Evans amounted to his being seized. Taken

together, these observat ions indicate that, at the time Evans's

libe rty was restricted, it was not clearly established that the

restrictions constituted a seizure under the Fourth Amendment.

C.

Evans 's other purported allegation of a clearly established

constitutional violation SS his claim that Ball and Steadman violated

his “right to be free from a prosecution not ba sed on probable

cause” SS also fails to abrogate qualified immunity. A plaintiff

attempting to state a claim under 42 U.S.C. § 1983 for prosecution

unsupported by probable cause must establish, as with a common law

malicious prosecution claim, that the prosecution terminated in his

favor. See Brummett v. Camble , 946 F.2d 1178, 1183 (5th Cir.9 We construe Evans's claim of a “prosecution uns upported by probable

cause” as a claim of malicious prosecution, because a prosecution that is

unsupported by probable cause but does not rise to the level of malicious

prosecution is not a clearly established constitutional violation. As a pure

matter of logic, there is a difference between the rig ht to be free from

malicious prosecution and the right to be free from a prosecution unsupported by

probable cause. Malicious prosecution includes seven elements: (1) prosecution;

(2) causation by the defendant ; (3) termination of the prosecution in the

plaintiff's fav or; (4) the plaintiff's innocence; (5) the absence of probable

cause for the proceedings; (6) malice in filing the charge; and (7) damage to the

plaintiff. H art

, 127 F.3d at 451. Prosecution in the absence of probable cause

requires only elements one, two, and five. Of course, if there is no probable

cause, then elements three, four, six, and seven likely will be present as well.

But it is possible to conceive of a “prosecution unsupported by probable cause”

that would not constitute a “malicious prosecution.”

There is, however, no clearly established constitutional right to be free

from a prosecution that is unsupported by probable cause but that does not rise

to the level of malicious p rosecution. First of all, the text of the Fourth

Amendment does not refer to any right to be free from prosecutions not supported

by probable cause. It states that “no Warrants shall issue, but upon probable

cause,” but there is a difference between a warrant unsupported by probable cause

and a prosecution in the absence of probable cause. Indeed, there was no warrant

(or arrest) in this case; Evans was summoned to court. Hence, the text of the

Fourth Amendment does not support the proposition that a prosecution not based

on probable cause is a constitutional violation.

T hat proposition also lacks support in our caselaw. We have held that

malicious prosecution may be a constitutional violation, but only if all of its

common law elements are established, including termination in favor of the

accused. S ee Brummett

, 946 F.2d at 1183. In W heeler v. Cosden Oil & Chem. Co.

, 734 F.2d 254 (5th Cir. 1984), we did state that “there is a federal right to be

free from bad faith prosecutions,” id

. at 258 ( quoting Shaw v. Garrison

, 467 F.2d

113, 120 (5th Cir. 1973)), and we defined bad faith as “without probable cause.”

Id. A close reading of that case, however, indicates that we meant only to be

recognizing a federal right to be free from malicious prosecution.

The issue before the Wheeler court was whether malicious prosecution could

form the grounds for a § 1983 action, and while the l anguage quoted above

suggests that a prosecution unsupported by probable cause (but not involving all

the elements of malicious prosecution) would violate the Constitution, we did not

so hold. In fact, we noted that other circuits agreeing with us that there is

a § 1983 action based on malicious prosecution “have implicitly recognized such

a cause of action in decisions holding that termination of the allegedly wrongful

state proceedings in favor of the federal plaintiff is as essential to such a

clai m under § 1983 as it would be at common law.” I d

. at 260 n.14. W heeler

, then, should not be read as recognizing a constitutional right to be free from

prosecutions that are unsupported by probable cause but that do not rise to the

level of malicious prosecution. In addition, in B rummett we questioned whether

Wheeler 's reasoning on “the implied constitutional right to have charges brought

only upon probable cause

. . . would survive the Supreme Court's recent attempts

to predicate constitutional rights on a more textual footing.” B r ummett

, (continued...)

14 1991). 9 Because a B ivens action parallels a § 1983 action, 10 we9 (...continued)

946 F.2d at 1181 ( citing Wilson v. Seiter , 501 U.S. 298 (1991)).

Finally, the Supreme Court has noted that “the most expansive approach” any

circuit has taken in finding a constitutional violation in a prosecution

unsupported by probable cause still maintains that the elements of the

constitutional cause of action “are the same as the common-law tort of malicious

prosecution.” A lbright

, 510 U.S. at 271 n.4. Taken together, these observations

demonstrate that Evans did not have a clearly established constitutional right

“to be free from a prosecution that is not based upon probable cause.” He has

a right to be free from malicious prosecution, but to demonstrate a violation of

that right, he would have to demonstrate all th e elements of malicious

prosecution, including termination in his favor.

10 A Bivens action is analogous to an action under § 1983 SS the only

d ifference being that § 1983 applies to constitutional violations by s tate,

rather than federal, officials. S ee Abate v. Southern Pac. Transp. Co.

, 993 F.2d

107, 110 n.14 (5th Cir. 1993) (“Bivens is the federal counterpart of § 1983 [and]

. . . extends the protections afforded by § 1983 to parties injured by federal

actors not liable under § 1983.”). S ee also Harlow v. Fitzgerald

, 457 U.S. 800,

8 18 (1982) (“[I]t would be 'untenable to draw a distinction for purposes of

immunity law between suits brought against state officials under § 1983 and suits

brought directly under the Constitution against federal officials.'”) (quoting

Butz v. Economou , 438 U.S. 478, 504 (1978)).

11 See Uboh v. Reno

, 141 F.3d 1000, 1 004 (11th Cir. 1998) (holding that

favorable termination is necessary element of Bivens action, as well as § 1983

action, that is premised on prosecution unsupported by probable cause).

15 reason that a plaintif f attempting to base a B ivens claim on a

prosecution unsupported by probable cause must establish all the

elements of malicious prosecution, inc luding termination of the

prosecution in his favor. 11

V.

Evans thus does not allege a clea rly established

constitutional violation, because the prosecution did not terminate

in his favor. Because he has alleged no violation of a clearly

established constitutional right, he is unable to overcome the

defe nse of qualified immunity, and the district court correctly16

granted summary judgment.

AFFIRMED.