This Cross-Appeal raises no issues not implicated by the Appellant’s

*

brief. 

F I LED

United States Court of Appeals

Tenth Circuit

July 19, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TAJ BECKER, M.D.,

Plaintiff-Appellant-Cross

 Appellee,

v. Nos. 05-4070 and 05-4096*

J. DENIS KROLL, JEFF WRIGHT,

TERRY ALLEN, Ph.D., GORDON

VAN BALLEGOIE, and MICHELLE

HERBERT, in their individual, official

and representative capacities,

Defendants-Appellees-

 Cross Appellants.

GARY R. EVANS, MARK

SHURTLEFF, DAVID GARDNER,

JOHN DOES 1-20, in their individual,

official and representative capacities,

Defendants-Appellees.

THE ASSOCIATION OF AMERICAN

PHYSICIANS & SURGEONS,

Amicus Curiae.
 The Honorable Claire V. Eagan, Chief Judge, United States District **

Court for the Northern District of Oklahoma, sitting by designation.

-2-

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. NO. 2:02-CV-24-DAK)

Robert R. Wallace, Kirton & McConkie, Salt Lake City, Utah, for PlaintiffAppellant-Cross Appellee.

Debra J. Moore, Assistant Utah Attorney General, Salt Lake City, Utah, for

Defendants-Appellees-Cross Appellants.

J. Clifford Petersen, Assistant Utah Attorney General, Salt Lake City, Utah, for

Defendants-Appellees.

Andrew L. Schlafly, Far Hills, New Jersey, on brief for Amicus Curiae.

Before TYMKOVICH, McWILLIAMS, Circuit Judges, and EAGAN, District

Judge.**

TYMKOVICH, Circuit Judge.

Taj Becker is a medical doctor in St. George, Utah, who participated in

Utah’s Medicaid program. Between 1998 and 2001, she was investigated by

Utah’s Medicaid Fraud Control Unit (MFCU) for alleged billing irregularities. 

The investigation culminated with the filing of a civil complaint and criminal

charges. Those charges were later dismissed by state prosecutors concerned about

the methods MFCU used to obtain records and assess Becker’s billing practices. 
-3-

After the charges were dismissed, Becker brought claims under 42 U.S.C. §

1983, alleging that the MFCU investigation was a sham to force her to pay civil

penalties to avoid criminal prosecution. Her lawsuit was based on several federal

and state theories, which she has distilled on appeal to the following: (1)

malicious prosecution under the Fourth and Fourteenth Amendments; (2)

outrageous conduct in violation of substantive due process under the Fourteenth

Amendment; (3) retaliation under the First Amendment; and (4) libel under state

law.

For the reasons discussed herein, we AFFIRM the district court’s grant of

summary judgment to the defendants as to the Fourth and Fourteenth Amendment

claims, and we REVERSE and REMAND the First Amendment retaliation and

state law libel claims. 

I. Factual Background

Becker is a board-certified neurologist practicing in St. George, Utah. Her

claims arise out of a criminal investigation and prosecution by MFCU, a task

force assigned to combating Medicaid fraud in Utah. The MFCU investigation

centered on a suspicion that Becker “up-coded” or over-billed the government for
 Up-coding is over-billing of a particular kind: it is the practice of billing 1

the government for a more expensive medical service than the service actually

provided the Medicaid patient. Because Medicaid has a special billing code for

thousands of individual medical procedures, the term “up-coding” is used to

indicate the use of a higher code in the billing than is justified by the procedure

performed.

-4-

services performed for Medicaid patients in her care. The facts of this case are 1

best understood chronologically.

MFCU Begins an Investigation and Subpoenas Becker’s Records

 In early to mid-November 1998, Becker’s billings to Medicaid were

flagged by MFCU research analyst Terry Allen. Allen concluded that Becker’s

bills showed evidence of possible up-coding. Allen’s work was the basis for an

initial investigation by Sergeant Jeff Wright, the chief investigator for MFCU. 

Wright’s investigation allegedly supported Allen’s conclusion that Becker may

have up-coded. As a result, J. Denis Kroll, the Assistant Utah Attorney General

who served as MFCU’s lead prosecutor, sought and received permission from a

state judge to issue subpoenas for Becker’s medical records.

On the morning of November 17, 1998, Wright and MFCU medical

investigator Michelle Hebert-Snow arrived unannounced at Becker’s office and

demanded that she produce certain medical records for copying. The subpoena

requested billing records for forty-seven randomly-selected patients between 1995

and 1998. Wright informed Becker that since she had signed a provider

agreement with Medicaid, he was entitled to the records. Becker informed Wright
 It is worth noting that Salt Lake City is approximately 300 miles 2

northeast of St. George.

-5-

that she would only produce the records pursuant to a subpoena. Wright then

provided Becker with what appeared to be a facially valid subpoena for the

records. The subpoena provided that Becker could refuse to turn over the records

immediately and appear a few days later in Salt Lake City if she wanted to contest

the subpoena. After reviewing the subpoena, Becker chose not to challenge it 2

and instructed her staff to produce the records immediately. Wright and others

from MFCU removed and copied dozens of patient records, which they returned

to Becker’s office later that day. Hebert-Snow performed an initial review of the

copied records and concluded that Becker had likely up-coded.

MFCU Threatens Prosecution and Proposes Settlement of the Charges

Becker was then asked to come to Salt Lake City to meet with Kroll to

discuss the investigation. On January 20, 1999, Becker traveled to Salt Lake City

and met with Kroll, Wright, and Hebert-Snow. According to Becker, this meeting

was first an interview and then an impromptu settlement conference. Specifically,

Becker claims she was told that if she did not pay $107,000 to MFCU within two

weeks, she would face criminal prosecution. In his own words, Kroll testified

that he informed Becker of the “parade of horrors” and “how bad it could get” if

MFCU filed criminal charges. Supp. App. Aple. Kroll, et al. 294–97.
-6-

Becker maintained she was innocent of any up-coding and refused to settle

with MFCU. Becker argued to Kroll that the medical experts who had reviewed

her billing practices were not neurologists and therefore had no expertise to

determine the validity of her billing statements. Following this exchange, and

without telling Becker, MFCU contracted with Dr. Vine, an independent

neurologist, to review Becker’s records. Vine concluded that Becker’s billing

practices were appropriate.

In April 1999, Kroll again contacted Becker and offered to waive any

criminal prosecution if Becker would pay $49,605 to MFCU. Kroll provided

Becker with a draft criminal complaint against her seeking $646,000 in damages. 

Becker again maintained her innocence and refused to settle. 

MFCU Files and Withdraws Civil Suit

On June 24, 1999, Kroll filed a civil suit against Becker, asking for $25,000

in damages plus fines and investigative costs. According to Kroll, he filed the

suit as part of settlement discussions with Becker, and he dismissed the civil

action less than two weeks later on July 7, 1999 when settlement failed to

materialize.

Following the dismissal of the civil action, Becker began to publicly

respond to the MFCU investigation. First, in November 1999, she filed a Notice
 A Notice of Claim is required under Utah law where any citizen seeks 3

recovery from an arm of the state government.

 The parties seem to disagree about when the transfer to the Attorney 4

General’s Office occurred. Defendants’ brief suggests the transfer took place in

July 1999. Aples. Kroll et al. Br. 20. Becker’s brief does not provide a date for

the transfer, but Gardner stated in his deposition that control of MFCU was

transferred to the Utah Attorney General’s Office after he began working there in

December 1999. Aplt. App. 224. To the extent this establishes a factual issue,

we view it in the light most favorable to Becker. We therefore assume the

transfer took place in December 1999 after Becker began speaking publicly about

MFCU’s tactics.

-7-

of Claim against MFCU. She and her husband also initiated a letter-writing 3

campaign in which they contacted the Governor, federal and state legislators, and

other officials, detailing what Becker believed were unprofessional investigative

practices and bullying tactics of MFCU. Only one letter in the record, sent to the

Chairman of the Utah Senate Appropriations Committee, and copied to the

Chairman of the Utah House Appropriations Committee and the Utah Governor, is

dated prior to the filing of criminal charges against Becker. 

The state decided in 1999 to transfer oversight of MFCU from the Utah

Department of Public Safety to the Attorney General’s Office, a transfer the

district court attributed to political pressure from rural doctors claiming

maltreatment by MFCU. In December 1999, David Gardner took over Kroll’s

position as the lead prosecutor for MFCU. Kroll became interim director of

MFCU.

4
-8-

MFCU Files a Criminal Complaint

On January 11, 2000, MFCU filed felony charges in state court concerning

Becker’s billing practices. That same day, Becker’s husband testified before a

state legislative committee about MFCU’s alleged prosecutorial abuses.

According to Gardner, he made the decision to file criminal charges based in part

on an information and affidavit signed by Wright, one of the original MFCU

investigators on the case. Gardner also discussed the case with several other

prosecutors, including his supervisors, before he decided to file charges against

Becker. Shortly after the criminal charges were filed, Wright was transferred out

of MFCU to a different department although he later testified at Becker’s

preliminary hearing.

At the preliminary hearing on July 11, 2000, the prosecution presented

evidence in support of the charges. Prior to the defense presenting any evidence,

the court stated, “I believe the State has provided sufficient evidence on each of

those elements and, accordingly, I bind you over.” Supp. App. Aple. Kroll, et al.

580. After making this statement, the court then acknowledged that the court

“probably acted prematurely in doing this bind over” because Becker was not

given an opportunity to testify. Id. Becker, through her attorney, then chose not

to present any evidence at the preliminary hearing given the court’s earlier
 Becker disputes that she was ever actually bound over for trial under 5

state law because the judge did not sign the required minute entry. For unknown

reasons, a minute entry was stamped with the state judge’s signature by the clerk

of court several months after the minute entry was originally entered. The court

clerk who stamped the minute entry with the judge’s signature cannot recall

whether she stamped the minute entry at the request of someone else or on her

own volition. Nevertheless, the court clerk’s testimony is clear that she did not

stamp the minute entry at the direction of the judge. 

-9-

statement. 

5

MFCU Withdraws Criminal Complaint Due to Irregularities in

Investigation

Shortly after the preliminary hearing, Gardner became aware of several

irregularities in the investigation. In particular, Gardner learned that Becker’s

medical records were not obtained voluntarily as Wright had originally led him to

believe. Gardner also discovered that there never had been a return of service

filed with the court with respect to the subpoenas, as required under Utah law,

and that key meetings between Becker and MFCU members had not been

documented, including the January and April 1999 settlement offers. Gardner

further discovered that MFCU had consulted with Dr. Vine, and that Dr. Vine had

found no irregularities in Becker’s billing and Medicaid coding practices. Dr.

Vine’s review and conclusions regarding Becker’s billing records were not

documented in the MFCU case file and were never provided to Becker as

potential exculpatory evidence. Because of these irregularities, Gardner
-10-

concluded that the key evidence would likely be suppressed prior to trial and

dismissed the criminal case with prejudice on September 6, 2000.

Becker Cleared at Administrative Hearing but Judged on World Wide Web

Gardner instead referred the case to the Utah Division of Health Care

Financing for administrative action. An agency action was brought against

Becker to recover $5,000 allegedly collected by means of fraudulent up-coding. 

After a hearing on the merits, Becker was found to owe nothing.

On January 12, 2001, MFCU nevertheless published an account of Becker’s

case on its website as a part of its statutorily-required annual report. The report

was worded in a way to make it appear as though Becker was guilty of up-coding

despite the dismissal of the criminal case and the later administrative

determination in favor of Becker. The relevant section of the report was drafted

by Gardner at the request of Gale Evans, who became MFCU director in August

2000. MFCU removed the report from its website on May 19, 2001, after

complaints from Becker of its libelous nature.

Becker’s Allegations Regarding Defendants’ Motivation

Becker claimed in district court that MFCU engaged in a scheme to charge

innocent physicians in rural areas with Medicaid fraud to increase fraud

recoveries for MFCU. Becker asserts that the investigation of her and other rural

doctors began only after department supervisors placed pressure on MFCU to

improve its financial recoveries. MFCU is required to submit quarterly statistical
-11-

reports to the federal Office of the Inspector General–State Medicaid Oversight

and Policy, which bases financial grants in part on fraud recovery performance

and can de-certify Medicaid fraud units on the basis of poor recoveries. Becker

claims this dynamic put financial pressure on MFCU to justify its existence and

caused members of MFCU to prosecute innocent persons, particularly rural

doctors who were more likely to pay the requested fines than incur the high costs

associated with fighting a legal battle with MFCU.

II. Procedural History

Becker initially filed suit in January 2002 in the United States District

Court for the District of Utah under 42 U.S.C. § 1983 and state law. Her third

and final amended complaint, filed in January 2004 alleged nine causes of action:

(1) denial of due process; (2) extortion/bribery; (3) retaliation for speaking out on

a matter of public concern; (4) libel; (5) malicious prosecution; (6) declaratory

judgment; (7) injunction; (8) conspiracy; and (9) substantive due process. The

district court issued two rulings on summary judgment. First, in October 2004 it

granted summary judgment in favor of all defendants on all claims except the

malicious prosecution and related conspiracy claims against Kroll and Wright. 

Becker v. Kroll, 340 F. Supp. 2d 1230 (D. Utah 2004). 

In March 2005, the district court then granted Kroll and Wright’s Renewed

Motion for Summary Judgment as to the remaining claims on the ground that a

malicious prosecution claim cannot proceed when the plaintiff was never “seized”
 Becker has waived appellate review of several other claims. Federal Rule 6

of Appellate Procedure 28(a)(9)(A) requires appellants to sufficiently raise all

issues and arguments on which they desire appellate review in their opening brief. 

An issue or argument insufficiently raised in the opening brief is deemed waived. 

Headrick v. Rockwell Int’l Corp., 24 F.3d 1272, 1277–78 (10th Cir. 1994). By

not raising them in her opening brief, Becker has waived all her claims against all

defendants/appellees in their official capacities that were properly dismissed by

the district court on Eleventh Amendment grounds. Becker has also waived the

entirety of her claims against Utah Attorney General Mark Shurtleff by failing to

explicitly challenge the district court’s dismissal of claims against him and by

(continued...)

-12-

under the Fourth Amendment. Without evidence of seizure, the § 1983 claims

and the related conspiracy claims were dismissed. Becker timely appealed both

summary judgment orders.

III. Analysis

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

the same standard as 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.” Fed. R. Civ. P. 56(c). We determine

whether the evidence proffered by the plaintiff, if believed by the fact-finder,

would be sufficient to sustain the claim, Foster v. AlliedSignal, Inc., 293 F.3d

1187, 1195 (10th Cir. 2002), and draw all reasonable inferences from the

evidence in the manner most favorable to the plaintiff. Fisher v. Okla. Health

Care Auth., 335 F.3d 1175, 1180 (10th Cir. 2003).

Becker contends that the district court erred in granting summary judgment

on her federal constitutional and state libel claims. In particular, she claims that 6
(...continued) 6

failing to include him in her description of the parties in her brief on appeal. 

Additionally, Becker has waived her malicious prosecution claim against all

defendants/appellees except Kroll and Wright by challenging dismissal only as to

those two defendants. Finally, Becker stipulated below that her procedural due

process and substantive due process claims do not apply to defendant/appellee

Gardner. These claims are therefore also waived. 

-13-

the defendants violated her constitutional rights in three ways: (1) malicious

prosecution under the Fourth and Fourteenth Amendment; (2) outrageous conduct

under the Fourteenth Amendment’s substantive due process component; and (3)

retaliation under the First Amendment. Her libel claim rests on whether the

district court correctly applied Utah law.

We note that what Becker addresses in her brief as separate

claims—malicious prosecution, violation of procedural due process, and violation

of substantive due process—all amount to the claim that she was investigated and

prosecuted without probable cause. We therefore address all of her claims under

the Fourth and Fourteenth Amendments as malicious prosecution claims. We then

address her claims for First Amendment retaliation and libel.

A. Malicious Prosecution Claims Under the Fourth and Fourteenth

Amendments

This case requires us to wade into the murky waters of § 1983-based

malicious prosecution claims. Section 1983 provides a federal civil cause of

action against state officials for the “deprivation of any rights, privileges, or

immunities secured by the Constitution.” 42 U.S.C. § 1983. Claims under § 1983
-14-

are often analytically similar to—although still distinct from—common law torts,

such as malicious prosecution. Most recently, in Pierce v. Gilchrist, 359 F.3d

1279 (10th Cir. 2004), for example, we examined a claim for malicious

prosecution under § 1983, recognizing the uneasy relationship between § 1983

constitutional torts and state common law causes of action. As we observed in

Pierce, 359 F.3d at 1286, “[s]ince Carey v. Piphus, 435 U.S. 247 (1978), courts

have used the common law of torts as a ‘starting point’ for determining the

contours of claims of constitutional violations under § 1983.” In other words, the

common law tort—while not entirely imported into § 1983—provides a useful

guidepost in making sense of alleged constitutional injuries. See id. at 1286 n.3. 

In some instances, a common law tort is sufficiently analogous to the alleged

constitutional violation that its common law elements are grafted onto and

themselves become elements of a § 1983 constitutional tort. But not all § 1983

actions have a common law analog, and no § 1983 action depends entirely on a

common law analog to define its elements. 

The core inquiry under any § 1983 action, regardless of the analogous

common law tort, is whether the plaintiff has alleged an actionable constitutional

violation. Id. at 1290 (citing Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir.

1996)). The district court dismissed Becker’s claim because it determined that no

seizure existed under the Fourth Amendment which would support a § 1983 action

for malicious prosecution. 
 Becker does not distinguish between her Fourth Amendment-based search 7

and seizure claims (as applied to the states through the Fourteenth Amendment)

and her procedural due process claims. We address these arguments separately

for the sake of analytical clarity.

-15-

Becker argues the district court erred in two respects in considering her

claims: she argues (1) that criminal charges alone, even though subsequently

dismissed, constitute a sufficient restraint on her liberty to qualify as a seizure

under the Fourth Amendment, and (2) that MFCU also violated her due process

rights during the course of the investigation, which provides an additional

constitutional basis for her malicious prosecution cause of action. 

We have repeatedly recognized in this circuit that, at least prior to trial, the

relevant constitutional underpinning for a claim of malicious prosecution under §

1983 must be “the Fourth Amendment’s right to be free from unreasonable

seizures.” Taylor, 82 F.3d at 1561; see Pierce, 359 F.3d at 1285–86. Although

we agree with the district court that a seizure is necessary to support a § 1983

malicious prosecution claim based on the initiation of criminal proceedings that

are dismissed before trial, we also discuss whether Becker may rely on a theory

that the defendants deprived her of liberty or property interests without due

process of law in violation of the Fourteenth Amendment. We conclude that 7

Becker has not alleged a constitutional violation under either Amendment. 
-16-

1. Was There a Fourth Amendment Seizure?

The Fourth Amendment protects the right of citizens to “be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” 

U.S. Const. amend. IV. Becker advances two arguments under which MFCU

violated her Fourth Amendment rights. First, she argues that MFCU unreasonably

seized her person because the investigation into her billing practices imposed

burdens on her time, finances, and reputation by requiring her to travel to and

attend meetings, pay legal costs, and, eventually, face criminal charges. Second,

she argues that MFCU unreasonably seized her property when it copied her

medical records.

a. Seizure of Person

“Violation of the Fourth Amendment requires an intentional acquisition of

physical control.” Brower v. County of Inyo, 489 U.S. 593, 596 (1989). In our

cases analyzing malicious prosecution under § 1983, we have always proceeded

based on a seizure by the state—arrest or imprisonment. See, e.g., Pierce, 359

F.3d at 1281 (plaintiff incarcerated for fifteen years); Taylor, 82 F.3d at 1558 &

n.5 (plaintiff arrested and held for seven weeks); Wolford v. Lasater, 78 F.3d 484,

487 (10th Cir. 1996) (plaintiff arrested). Here, Becker conceded she was never

arrested, incarcerated, or otherwise placed under the direct physical control of the

state. Accordingly, Becker was never “seized” in the traditional sense.
-17-

Becker nonetheless argues that we should adopt a broader theory of seizure,

based on the Supreme Court’s decision in Albright v. Oliver, 510 U.S. 266 (1994). 

In that case, the Court concluded that the Fourteenth Amendment does not

provide a substantive due process right to be free from prosecution without

probable cause, but left open the possibility that a plaintiff could bring such a

claim under the Fourth Amendment. In a noteworthy concurrence to the Court’s

plurality opinion, Justice Ginsburg analyzed Albright’s claim under the Fourth

Amendment and urged the Court to adopt a non-custodial concept of “continuing

seizure” in order to take into account under the Fourth Amendment the harms

incident to the control exercised by the state over a citizen before trial. She

argued that seizures for Fourth Amendment purposes include requiring a person to

post bond, compelling a person to appear in court, or imposing restrictions on a

person’s right to interstate travel, all of which might create reputational,

emotional, and financial harms. Id. at 278. 

Justice Ginsburg’s continuing seizure analysis has yet to garner a majority

of the justices of the Supreme Court, and we are not compelled to adopt it. The

Court has been careful to tie all actions under § 1983 to specifically protected

constitutional rights in order to avoid creating a free-standing constitutional tort

regime under § 1983. To extend liability in cases without a traditional seizure

would expand the notion of seizure beyond recognition and fall into the trap

carefully avoided by the Albright majority—every charging decision would
-18-

support a § 1983 malicious prosecution-type claim no matter the context. See

Nieves v. McSweeney, 241 F.3d 46, 55 (1st Cir. 2001) (“[I]f the concept of a

seizure is regarded as elastic enough to encompass standard conditions of pretrial

release, virtually every criminal defendant will be deemed to be seized pending

the resolution of the charges against him. That would mean, in turn, that nearly

every malicious prosecution claim could be brought before a federal court under

the aegis of section 1983.”). While the consequences of unfounded criminal

charges are surely grave, the Fourth Amendment adequately covers constitutional

interests in the pre-trial exercise of government control over a person or property. 

A groundless charging decision may abuse the criminal process, but it does not, in

and of itself, violate the Fourth Amendment absent a significant restriction on

liberty. 

We thus agree with the courts that have also declined to accept Justice

Ginsburg’s invitation to expand Fourth Amendment liability in cases where the

plaintiff has not been arrested or incarcerated. See DiBella v. Borough of

Beachwood, 407 F.3d 599, 603 (3d Cir. 2005); Kingsland v. City of Miami, 382

F.3d 1220, 1236 (11th Cir. 2004); Karam v. City of Burbank, 352 F.3d 1188, 1193

(9th Cir. 2003); Nieves v. McSweeney, 241 F.3d 46, 56 (1st Cir. 2001); Britton v.

Maloney, 196 F.3d 24, 29–30 (1st Cir. 1999) (all declining to recognize typical

pre-trial release conditions, such as receiving a summons, posting bond,

restricting travel, and appearing in court, as a seizure); see also Washington v.
-19-

County of Rockland, 373 F.3d 310, 317 (2d Cir. 2004) (finding no seizure when

plaintiffs charged in administrative proceeding and suspended without pay but

never physically detained). These cases, moreover, are consistent with those

rejecting a “continuing seizure” rationale for post-arrest incarceration, which hold

that even when a defendant is in custody, a seizure ends when pretrial

incarceration begins. See Riley v. Dorton, 115 F.3d 1159, 1164 (4th Cir. 1997);

Reed v. City of Chicago, 77 F.3d 1049, 1052 n.3 (7th Cir. 1996) (citing Wilkins v.

May, 872 F.2d 190, 194 (7th Cir. 1989)). 

Even those courts that subscribe to the line of reasoning endorsed by

Justice Ginsburg have recognized a seizure only when criminal charges are

coupled with another significant restraint on liberty, such as restrictions on travel. 

See Evans v. Ball, 168 F.3d 856, 861 (5th Cir. 1999) (“A summons, coupled with

[] additional liberty restrictions [in this case a bond and travel restrictions] may

constitute a seizure under the Fourth Amendment.”); Gallo v. City of

Philadelphia, 161 F.3d 217, 222–25 (3d Cir. 1998) (holding plaintiff seized when

subjected to travel restrictions and required to contact pretrial services weekly);

Murphy v. Lynn, 118 F.3d 938, 945 (2d Cir. 1997) (holding plaintiff seized when

ordered not to leave state and required to attend court). Becker does not argue

that she was subject to any of these indicia of non-physical control arising from

MFCU’s investigation and prosecution—she apparently never posted bond, was

not required to appear in court, and had no specific restrictions on her freedom of
-20-

movement. Under these circumstances, even if we were inclined to broaden the

meaning of seizure beyond our traditional understanding, this case does not

present a vehicle for doing so.

Accordingly, the district court did not err in determining Becker was not

seized under the Fourth Amendment.

b. Seizure of Property 

Nor did the defendants unreasonably seize Becker’s property in violation of

the Fourth Amendment. Becker makes two arguments that the subpoena of her

records provides the Fourth Amendment violation necessary to her claim for

malicious prosecution under § 1983: (1) the copying of her medical records was

an unreasonable seizure because it occurred by means of a subpoena that was not

supported by probable cause, and (2) MFCU’s various violations of state law

collectively add up to a Fourth Amendment violation.

Probable Cause for the Subpoena

First, MFCU’s issuance of a subpoena to inspect Becker’s medical records

was not unreasonable under the Fourth Amendment because state administrative

subpoenas need not be supported by probable cause. Under Fourth Amendment

law, an investigatory or administrative subpoena is not subject to the same

probable cause requirements as a search warrant. See v. City of Seattle, 387 U.S.

541, 544 (1967); United States v. Reno, 522 F.2d 572, 575 (10th Cir. 1975). The

Fourth Amendment requires only that a subpoena be “sufficiently limited in
-21-

scope, relevant in purpose, and specific in directive so that compliance will not be

unreasonably burdensome.” City of Seattle, 387 U.S. at 544; see also Matter of

Grand Jury Subpoena Duces Tecum Issued on June 9, 1982, to “Custodian of

Records,” 697 F.2d 277, 281 (10th Cir. 1983) (holding a subpoena in a criminal

investigation “is not unreasonable under the Fourth Amendment if it: (1)

commands the production only of things relevant to the investigation; (2)

specifies the items with reasonable particularity; and (3) covers only a reasonable

period of time”); United States v. Bailey (In re Subpoena Duces Tecum), 228 F.3d

341, 347–49 (4th Cir. 2000) (holding probable cause required for warrants but not

subpoenas because warrants are “immedia[te] and intrusive[]” whereas the

subpoenaed party has an opportunity to challenge a subpoena before complying

with it).

That the subpoena was issued administratively with potential criminal

ramifications does not change the analysis. In United States v. Smith, 484 F.2d 8,

11 (10th Cir. 1973), we held that an administrative summons issued by the IRS in

the initial stages of a tax fraud investigation did not violate the Fourth

Amendment when it was issued in good faith and prior to a recommendation for

criminal prosecution. More recently, the Sixth Circuit held that an administrative

subpoena in a health care fraud investigation by the U.S. Attorney General need

not be supported by probable cause. Doe v. United States (In re Admin.

Subpoena), 253 F.3d 256, 263–65 (6th Cir. 2001) (applying “reasonable
-22-

relevance” test). Similarly, grand jury subpoenas need not be supported by

probable cause so long as the information sought is relevant and specifically

identified. Reno, 522 F.2d at 575. 

The subpoena here met these minimal requirements for Fourth Amendment

reasonableness, and Becker does not argue otherwise. Becker’s Medicaid filings

were flagged by MFCU’s analyst, and the records sought were relevant to

MFCU’s investigation of potential up-coding. Becker does not argue that the

request was unreasonably burdensome or overbroad, and MFCU was able to copy

and return the files in a day. We see no reason to conclude the subpoena was

unreasonable under the Fourth Amendment, so the subpoena alone does not

provide the basis for a § 1983 claim.

State Law Violations

Second, Becker also argues that, even if probable cause was not a necessary

predicate to a valid subpoena under the Fourth Amendment, MFCU violated a

number of state law provisions in issuing the subpoena for her medical records

which collectively amount to an unreasonable Fourth Amendment seizure. For

example, she argues that the subpoena suffered from problems including (1)

service by an interested party, (2) failure of MFCU to file a statutorily required

return of service with the issuing court, and (3) failure to notify Becker that the

records in the court file were sealed. 
 Procedural due process ensures that individuals are entitled to certain 8

procedural safeguards before a state can deprive them of life, liberty or property. 

See Albright, 510 U.S. at 275 (Scalia, J., concurring). By contrast, the more

expansive notion of substantive due process assumes that some deprivations of

life, liberty, or property are so grievous that no amount of procedure can justify

(continued...)

-23-

A state’s violation of its own law, however, is not sufficient, in and of

itself, to create a federal constitutional violation. Davis v. Scherer, 468 U.S. 183,

194–96 (1984); Rector v. City & County of Denver, 348 F.3d 935, 947 (10th Cir.

2003). Becker only has a cause of action under § 1983 if the State’s actions “fail

to meet basic federal constitutional standards,” Rector, 348 F.3d at 947, and none

of the state procedural requirements involving subpoenas rise to that level under

the Fourth Amendment. Becker therefore did not suffer an unreasonable seizure

of her property.

Because Becker has not successfully alleged a violation of the Fourth

Amendment, she cannot proceed in a claim for malicious prosecution based on an

unreasonable seizure.

2. Is There a Malicious Prosecution Claim Based on a Fourteenth

Amendment Due Process Violation?

Even without a Fourth Amendment seizure, Becker argues that MFCU’s

conduct violated her due process rights because the probe into her billing

practices deprived her of liberty or property “without due process of law.” She

alleges that MFCU’s actions violated both the procedural and substantive

components of due process. We note at the outset that a natural reading of 8
(...continued) 8

the deprivation. Parratt v. Taylor, 451 U.S. 527, 545 (1981) (Blackmun, J.,

concurring) (“[T]here are certain governmental actions that, even if undertaken

with a full panoply of procedural protection, are, in and of themselves,

antithetical to fundamental notions of due process.”). “Though it is sometimes

helpful, as a matter of doctrine, to distinguish between substantive and procedural

due process, the two concepts are not mutually exclusive, and their protections

often overlap.” Albright, 510 U.S. at 301 (Stevens, J., dissenting) (citations

omitted). 

-24-

Supreme Court precedent in Albright v. Oliver seems to foreclose Becker’s

argument that MFCU violated her due process rights by initiating criminal

proceedings against her without probable cause. 510 U.S. 266. 

Nevertheless, reading Becker’s filings liberally, she alleges some injuries

resulting from the filing of criminal charges against her that are outside the scope

of the Fourth Amendment’s substantive and procedural protections. These

injuries might be cognizable as due process violations through a gap in

constitutional protection created by Albright’s limitation of § 1983 malicious

prosecution claims to those based on the Fourth Amendment. We therefore go on

to examine Becker’s potential due process claims. Even if Albright does not

foreclose these claims, Becker has not stated a violation of her due process rights.

a. Effect of Albright on Due Process Malicious Prosecution Claims

In Albright, the Court specifically rejected the plaintiff’s claim that his

groundless arrest violated substantive due process rights by depriving him of a

“‘liberty interest’ to be free from criminal prosecution except upon probable

cause.” 510 U.S. at 269. Instead, the Court concluded that the Fourth
 In apparent regard for this holding in Albright, Becker presents her 9

malicious prosecution claims under a heading separate from her substantive due

process claims based on a right to be free from criminal prosecution designed to

extort money. We consider that the gravamen of Becker’s complaint under both

theories is that she was prosecuted without probable cause. Accordingly, we

address her substantive due process arguments here under the heading of

malicious prosecution but determine that, even if Albright does not foreclose her

claim, she has not presented a substantive due process violation.

-25-

Amendment—not substantive due process—governed the plaintiff’s claims. Id. at

270. The plurality opinion reasoned, “Where a particular Amendment ‘provides

an explicit textual source of constitutional protection’ against a particular sort of

government behavior, ‘that Amendment . . . must be the guide for analyzing these

claims.’” Id. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). The

plurality concluded, “it is evident that substantive due process may not furnish the

constitutional peg on which to hang” a claim of malicious prosecution, 510 U.S.

at 270 n.4.9

We think the unavoidable construction of Albright is that no § 1983 claim

will arise from filing criminal charges without probable cause under the

substantive due process protections of the Fourteenth Amendment. And although

the plaintiff in Albright did not raise a procedural due process claim, 510 U.S. at

271, we find Albright’s reasoning regarding substantive due process equally

persuasive with regard to the Fourteenth Amendment’s procedural component. In

the initial stages of a criminal proceeding, the Fourth Amendment protects a

person’s liberty interests under the constitution by ensuring that any arrest or
-26-

physical incarceration attendant to a criminal prosecution is reasonable. See, e.g.

Albright, 510 U.S. at 274 (“We have in the past noted the Fourth Amendment’s

relevance to the deprivations of liberty that go hand in hand with criminal

prosecutions.”) (citing Gerstien v. Pugh, 420 U.S. 103, 114 (1975)). The more

general due process considerations of the Fourteenth Amendment are not a

fallback to protect interests more specifically addressed by the Fourth

Amendment in this context. See Albright, 510 U.S. at 273 (quoting Graham v.

Connor, 490 U.S. 386, 395 (1989)). 

Our post-Albright cases similarly emphasize the prominence of the Fourth

Amendment in the analysis of pre-trial liberty interests. See Pierce, 359 F.3d at

1285 (noting “[t]he initial seizure is governed by the Fourth Amendment” and

finding plaintiff stated a Fourth Amendment claim when he was arrested and

imprisoned); Taylor, 82 F.3d at 1560 (noting “the Fourth Amendment govern[s]

pretrial deprivations of liberty” and finding a Fourth Amendment violation when

the plaintiff was arrested) (both citing Albright). 

Under the facts of this case, where criminal charges were brought but

dismissed before trial, Becker must allege a violation of the Fourth Amendment in

order to proceed on a theory of § 1983 malicious prosecution. The Supreme

Court nonetheless has yet to clarify the scope of the plurality holding in Albright. 

And several lines of cases suggest an alternative theory of liability under the

Fourteenth Amendment. We turn to those theories next.
 She claims the following are procedural due process violations: (1) the 10

absence of probable cause for the subpoena, (2) lack of notice that her case file

had been sealed, (3) service of the subpoena by an interested party, (4) requiring

travel to Salt Lake City to challenge the subpoena, (5) failure to make a return of

service of the subpoena, (6) subsequently informing Gardner that the records had

been obtained voluntarily, and (7) hiding exculpatory information. Aplt. Br.

32–38. Becker also argues these circumstances amount to a Fourth Amendment

violation.

-27-

b. Procedural Due Process

Becker alleges seven separate instances which she claims collectively

amount to a violation of her procedural due process rights. For analytical 10

clarity, we construe her due process claims to be based on the following two

potentially protected interests: (1) a liberty interest in being free from

unwarranted investigation and prosecution without probable cause, and (2) a

property interest in the integrity of her medical and billing records. 

We conclude that Becker’s procedural due process interests under these

facts were adequately protected by the Fourth Amendment, state tort law, and the

procedures offered to challenge the administrative subpoena. 

The Investigation and Prosecution

Becker first argues she had a protected liberty interest in freedom from the

baseless investigation into her billing practices and the subsequent filing of

criminal charges, when they were not supported by probable cause. We do not

agree she has established an absence of procedural protections sufficient to create

a due process violation.
 The Sixth Circuit, however, after Albright, has analyzed malicious 11

prosecution-type claims based on ongoing custody under the Fourth Amendment

rather than due process. Gregory v. City of Louisville, 444 F.3d 725, 750 (6th

Cir. 2006). Contra Taylor v. Waters, 81 F.3d 429, 436 (4th Cir. 1996) (“[The

Fourth A]mendement requires that arrests be made based upon probable cause . . .

. Once such a determination of probable cause has been rendered, however, the

Fourth Amendment does not impose any further requirement of judicial oversight

or reasonable investigation to render pretrial seizure reasonable. Instead, other

constitutional guarantees contained in the Bill of Rights—such as the right to a

speedy trial—protect the accused . . . .”) (internal citations omitted); Torres v.

McLaughlin, 163 F.3d 169, 174 (3d Cir. 1998) (“[P]ost-conviction incarceration

cannot be a seizure within the meaning of the Fourth Amendment.”). See also

Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (acknowledging the Court has

not “resolved the question whether the Fourth Amendment continues to provide

individuals with protection against the deliberate use of excessive physical force

beyond the point at which arrest ends and pretrial detention begins”).

-28-

Several cases suggest that at some point in the prosecutorial process, due

process concerns can be sufficient to support a claim under § 1983. See, e.g.,

Pierce, 359 F.3d at 1285–86. In Pierce, we recognized that “at some point after

arrest, and certainly by the time of trial, constitutional analysis [of a malicious

prosecution claim] shifts to the Due Process Clause.” 359 F.3d at 1285–86; see

also Castellano v. Fragozo, 352 F.3d 939, 942 (5th Cir. 2003) (analyzing

knowing use of manufactured evidence and perjured testimony at trial as

violations of due process sufficient to support a § 1983 malicious prosecution

claim); Riley v. Dorton, 115 F.3d 1159, 1162 (4th Cir. 1997) (holding that once a

suspect is subject to pre-trial detention, due process governs the conditions of

ongoing custody). However, we determined in Pierce, “It is not necessary in 11

this case to determine where Fourth Amendment analysis ends and due process
-29-

analysis begins, because Mr. Pierce raised claims under both constitutional

provisions, and neither party argues that the difference in standards has any

bearing on this appeal.” 359 F.3d at 1286. By contrast, the difference in

standards does matter to Becker’s appeal, because, unlike Mr. Pierce, she was

never arrested in violation of the Fourth Amendment.

But even if we assume a procedural due process analysis applies to

Becker’s case, she has not established a due process violation. First, under

Albright and our subsequent cases, the Fourth Amendment adequately protected

Becker’s constitutional liberty interests, and she therefore has no procedural due

process claim based on pre-trial deprivations of physical liberty. See Albright,

510 U.S. 266; Pierce, 359 F.3d at 1285–86; Taylor, 82 F.3d at 1560. We are not

aware, moreover, of any other circuit that has extended Fourteenth Amendment

procedural due process guarantees to pre-trial deprivations of liberty. 

Nevertheless, we acknowledge that the Fourteenth Amendment’s

protections encompass harms to liberty outside the scope of the Fourth

Amendment’s concern with freedom from restraint, such as harm to reputation

resulting in some tangible injury, from which a plaintiff in Becker’s

circumstances may indeed suffer. See, e.g., Michael H. v. Gerald D., 491 U.S.

110, 121 (1989); Paul v. Davis, 424 U.S. 693, 701 (1976); Wisconsin v.

Constantineau, 400 U.S. 433, 437 (1971). But even if Becker did suffer such

injuries other than physical restraint, procedural due process only protects against
-30-

them by providing an adequate post-deprivation hearing in which the injured

party may vindicate these interests. See Constantineau, 400 U.S. at 436–37. 

In this case, state tort remedies meet the procedural requirements of the

Due Process Clause. The Supreme Court has held that where pre-deprivation

remedies cannot anticipate and prevent a state actor’s wrongful act, postdeprivation state tort remedies are adequate to satisfy due process requirements. 

Parratt v. Taylor, 451 U.S. 527, 535–44 (1981) (holding state could not anticipate

employee’s negligence); see also Hudson v. Palmer, 468 U.S. 517, 533 (1984)

(extending Parratt’s logic to intentional torts). In his Albright concurrence,

Justice Kennedy argued that in § 1983 malicious prosecution cases, a “state

actor’s random and unauthorized deprivation of [Fourteenth Amendment due

process interests] cannot be challenged under 42 U.S.C. § 1983 so long as the

State provides an adequate post deprivation remedy.” 510 U.S. at 284 (Kennedy,

J., concurring). As he explained, “In the ordinary case where an injury has been

caused . . . by a random and unauthorized act that can be remedied by state law,

there is no basis for intervention under § 1983, at least in a suit based on ‘the Due

Process Clause of the Fourteenth Amendment.’” Id. at 285 (quoting Parratt, 451

U.S. at 536); see also Nieves, 241 F.3d at 53 (rejecting procedural due process

claim under § 1983 for malicious prosecution because state provides adequate tort

remedy); Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001) (holding state
-31-

tort remedy “knocks out any constitutional tort of malicious prosecution” based

on due process). We agree with this analysis.

Becker does not suggest what pre-deprivation process could have

anticipated the malfeasance of the MFCU investigators and protected her from an

abusive investigation, and we decline to supply procedural requirements in

addition to already-established criminal procedure under the Constitution and

state law. Utah tort law provides an adequate post deprivation remedy to protect

Becker’s non-Fourth Amendment liberty interests. See Gilbert v. Ince, 981 P.2d

841 (Utah 1999) (recognizing state causes of action for malicious prosecution and

abuse of process); see generally 2 Dan B. Dobbs, The Law of Torts § 438 (2001)

(describing damages for malicious prosecution or abuse of process). Accordingly,

in this case, where Becker was never seized in violation of the Fourth

Amendment, Utah tort law provides an adequate procedural due process remedy

for any injuries not cognizable as a Fourth Amendment seizure. 

Becker has therefore suffered no deprivation of liberty in violation of her

procedural due process rights. 

The Medical Records

Nor does the subpoena of her medical records create a separate cause of

action under Fourteenth Amendment procedural due process. First, Becker’s

participation in the state and federal Medicaid program established a continuing

obligation to make records available to state officials. MFCU was entitled to the
-32-

records, which it copied and returned the same day. Accordingly, any property

interest Becker had in the records was minimal. 

Second, “[u]nder the Fourteenth Amendment, procedural due process

requires notice and a pre-deprivation hearing before property interests are

negatively affected by governmental actors.” Marcus v. McCollum, 394 F.3d 813,

818 (10th Cir. 2004). The subpoena in this case complied with those

requirements by offering Becker the opportunity for a pre-deprivation hearing. 

The district court found that “it is undisputed that plaintiff read the subpoena and

understood that she could either produce the records immediately or appear in

Salt Lake City a few days later.” Becker v. Kroll, 340 F. Supp. 2d 1230, 1241 (D.

Utah 2004). And of course Becker could have challenged the subpoena in court. 

See In re Subpoena Duces Tecum, 228 F.3d at 348 (“[T]he issuance of a subpoena

initiates an adversary process that can command the production of documents and

things only after judicial process is afforded.”). This opportunity to be heard is

all procedural due process requires. See Stanko v. Mahar, 419 F.3d 1107, 1115

(10th Cir. 2005) (due process requires “opportunity to be heard at a meaningful

time and in a meaningful manner”) (quoting Mathews v. Eldridge, 424 U.S. 319,

333 (1976)) (emphasis added); Boddie v. Connecticut, 401 U.S. 371, 378–79

(1971) (holding that “the hearing required by due process is subject to waiver”);

Miller v. Campbell County, 945 F.2d 348, 354 (10th Cir. 1991) (finding no
-33-

procedural due process violation when plaintiffs were offered but did not use

opportunity for hearing). 

Admittedly, the opportunity for a hearing offered was inconvenient,

requiring a 300-mile trip to Salt Lake City. Nevertheless, that Becker chose to

comply with the subpoena rather than avail herself of the process provided does

not amount to a violation of any procedural due process rights.

The district court did not err in dismissing Becker’s procedural due process

claims.

c. Substantive Due Process 

Justice Souter’s concurrence in Albright suggested the possibility that

initiating an unwarranted prosecution that is dismissed before trial may in some

unusual circumstances result in substantive due process violations separate from a

Fourth Amendment seizure: “There may indeed be exceptional cases where some

quantum of harm occurs in the interim period after groundless criminal charges

are filed but before any Fourth Amendment seizure. Whether any such unusual

case may reveal a substantial deprivation of liberty . . . independent of the Fourth

Amendment, are issues to be faced only when they arise.” Albright, 510 U.S. at

291 (Souter, J. concurring); see also Darrah v. City of Oak Park, 255 F.3d 301,

309 (6th Cir. 2001) (noting “§ 1983 malicious prosecution claims may still be

available pursuant to the Fourteenth Amendment’s substantive due process rights”

in cases that do not involve a Fourth Amendment seizure); Torres v. McLaughlin,
-34-

163 F.3d 169, 173 (3d Cir. 1998) (concluding Albright forecloses substantive due

process analysis only if the claim “is covered by the Fourth Amendment”). 

Becker argues that MFCU officials violated her substantive rights under the

Fourteenth Amendment’s due process clause when they engaged in a groundless

investigation designed to obtain civil penalties from her and withheld material

evidence tending to exonerate her. We conclude this is not a case that reveals a

substantial deprivation sufficient to rise to the level of a substantive due process

violation.

Claims Arising From the Investigation

Our cases recognize a § 1983 claim for a violation of Fourteenth

Amendment substantive due process rights in the narrowest of circumstances. 

The conduct alleged “must do more than show that the government actor

intentionally or recklessly caused injury to the plaintiff by abusing or misusing

government power . . . [It] must demonstrate a degree of outrageousness and a

magnitude of potential or actual harm that is truly conscience shocking.” Livsey

v. Salt Lake County, 275 F.3d 952, 957–58 (10th Cir. 2001); Uhlrig v. Harder, 64

F.3d 567, 573 (10th Cir. 1995). This standard is met in only the most extreme

circumstances, typically involving some violation of physical liberty or personal

physical integrity. See, e.g., Holland v. Harrington, 268 F.3d 1179 (10th Cir.

2001) (finding substantive due process violation when police held children at

gunpoint for extensive period of time even after control of home had been
-35-

secured); Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003) (recognizing

potential parental claim for substantive due process violation where government

did not seek consent before performing blood tests and genital exams on minor

children). 

The Supreme Court sets a similarly high hurdle for substantive due process

claims. It “has always been reluctant to expand the concept of substantive due

process because the guideposts for responsible decisionmaking in this unchartered

area are scarce and open-ended.” Collins v. Harker Heights, 503 U.S. 115, 125

(1992). “The protections of substantive due process have for the most part been

accorded to matters relating to marriage, family, procreation, and the right to

bodily integrity.” Albright, 510 U.S. at 272 (citing Planned Parenthood of Se.

Pa. v. Casey, 505 U.S. 833, 847–49 (1992)). 

The conduct alleged here does not meet this rigorous standard. While the

enforcement tactics and absence of professionalism in this case—if true as

alleged—fail the most obvious standards of proper conduct, they do not meet the

affronts to personal autonomy suggested by our case law. Becker has a number of

well-defined causes of action under state and federal law to vindicate her

interests. To rest her claims on the undefined contours of substantive due process
 Even if we agreed that Becker has stated a substantive due process 12

claim, given the novel nature of Becker’s theory when compared with earlier

cases, qualified immunity would likely apply to the officials involved. See

Holland, 268 F.3d at 1186.

 After the Moran case was remanded to the trial court and appealed 13

again, the court hearing the second appeal apparently rejected Albright’s language

limiting § 1983 malicious prosecution to claims based on the Fourth Amendment

because the challenged conduct was “well beyond the realm of malicious

prosecution” in light of the “purposeful conspiracy” involved. Moran v. Clarke,

359 F.3d 1058, 1061 (8th Cir. 2004). To this extent, Moran seems to base its

holding, which otherwise seems clearly contrary to Albright, in the substantive

due process protections against outrageous and arbitrary government conduct

Justice Souter alluded to in his Albright concurrence. 510 U.S. at 291 (Souter, J.

(continued...)

-36-

would only introduce uncertainty and analytical confusion to an already unwieldy

body of law. 

12

Claims Arising From the Withholding of Evidence

Becker also claims MFCU violated her due process rights by withholding

exculpatory evidence. Several other circuits have recognized a § 1983 malicious

prosecution-type claim under similar circumstances. See Moran v. Clarke, 296

F.3d 638, 647 (8th Cir. 2002). The Eighth Circuit in Moran concluded that

Albright did not foreclose a substantive due process claim because “[a]lthough the

Fourth Amendment covers seizures, which would be satisfied by Moran’s arrest,

law enforcement’s intentional creation of damaging facts would not fall within its

ambit. Here, we see no specifically applicable constitutional remedy that

provides Moran with explicit protection to a level sufficient to exclude

substantive due process analysis.” Id. 

13
(...continued) 13

concurring). Alternatively, Albright potentially did not apply in Moran because

the constitutional violation alleged was a violation of the right to a fair trial, even

though the Eighth Circuit did not make this reasoning explicit.

-37-

Becker presents a similar claim: that the defendants violated her due

process rights, as distinguished from her Fourth Amendment rights, by

suppressing exculpatory evidence and denying her a fair hearing. And this claim

has constitutional weight: the Supreme Court in Brady v. Maryland, 373 U.S. 83,

87 (1963) determined that a defendant’s right to access exculpatory evidence is

secured by the Due Process Clause. 

Other courts allowing this type of claim despite Albright have specifically

rooted the constitutional violation in the due process right to a fair trial. See

Castellano, 352 F.3d at 942, 959 (reasoning that presenting perjury and

manufactured evidence at trial violated substantive due process rights, and

Albright did not apply because events at trial are outside the Fourth Amendment’s

scope); Newsome, 256 F.3d at 752 (holding the plaintiff had “a due process claim

in the original sense of that phrase—he did not receive a fair trial if the

prosecutors withheld material exculpatory details”); Jean v. Collins, 107 F.3d

1111, 1114–15 (4th Cir. 1997) (“Albright does not preclude [this] cause of action

because the right to disclosure of exculpatory evidence is grounded directly in the

Due Process Clause itself [rather than the Fourth Amendment].”). 
-38-

Nevertheless, Becker never proceeded to trial, and she cannot therefore rest

her § 1983 claims on a Brady violation. See Brady, 373 U.S. at 86–88 (framing

the right to exculpatory evidence only in terms of providing a fair trial); see also

Jean v. Collins, 221 F.3d 656, 663 (4th Cir. 2000) (en banc) (“A Brady violation

that resulted in the overturning of the § 1983 plaintiff’s conviction is a necessary,

but not a sufficient, condition for § 1983 liability on the part of the police. It is a

necessary condition because the Brady violation establishes the requisite

threshold of constitutional injury (a conviction resulting in loss of liberty) below

which no § 1983 action can lie.”). We have held that, to establish a Brady

violation, the defendant must prove “(1) the prosecution suppressed evidence; (2)

the evidence was favorable to the accused; and (3) the evidence was material to

the defense.” United States v. Geames, 427 F.3d 1333, 1337 (10th Cir. 2005). A

plaintiff cannot establish materiality unless the case goes to trial and the

suppression of exculpatory evidence affects the outcome. See United States v.

Bagley, 473 U.S. 667, 678 (1985) (“[A] constitutional error occurs . . . only if the

evidence is material in the sense that its suppression undermines confidence in the

outcome of the trial.”). Thus, Becker suffered no due process violation based on

Brady and the suppression of evidence. See id. (“[S]uppression of evidence

amounts to a constitutional violation only if it deprives the defendant of a fair

trial.”); Taylor v. Waters, 81 F.3d 429, 436 n.5 (4th Cir. 1996) (allowing no §
-39-

1983 claim based on withholding exculpatory evidence where plaintiff did not go

to trial).

Accordingly, we agree with the district court that Becker has not

established a claim for a violation of substantive due process under the Fourteenth

Amendment. 

* * *

In sum, the district court did not err in dismissing Becker’s malicious

prosecution claims based on the Fourth and Fourteenth Amendments. Because we

determine that Becker’s Fourth and Fourteenth Amendment claims were properly

dismissed by the district court, it follows that her claim of conspiracy by the

various defendants to commit these constitutional violations also fails.

B. Retaliation Claim Under the First Amendment 

Becker also asserts a § 1983 claim for retaliatory prosecution under the

First Amendment. She contends that Gardner filed criminal charges against her

as a result of her public denunciations of MFCU. She points to the fact that just

hours after her husband testified before a state legislative committee regarding

MFCU’s investigative practices, MFCU filed its criminal case. We agree with the

district court that Gardner is absolutely immune from suit for the decision to file

charges, but we remand for further consideration of Becker’s retaliation claim

against other defendants.
 We have also recognized in the context of malicious prosecution a cause 14

of action against a person who influences the decision to prosecute but does not

(continued...)

-40-

A prosecutor’s charging decisions are absolutely immune from civil suit for

monetary damages. Hartman v. Moore, 126 S. Ct. 1695, 1704–05 (2006) (citing

Imbler v. Pachtman, 424 U.S. 409, 431 (1976)); see also Mink v. Suthers, 482

F.3d 1244, 1258–59 (10th Cir. 2007). Immunity extends to those activities

“intimately associated with the judicial phase of the criminal process,” which

undoubtedly includes initiating criminal proceedings. Imbler v. Pachtman, 424

U.S. 409, 430 (1976). This immunity applies even if the prosecutor files charges

knowing he lacks probable cause. See id. at 431 n.34 (applying immunity even

when prosecutor deliberately withholds exculpatory information from the court).

Accordingly, Becker cannot proceed on a retaliation claim based on Gardner’s

decision to charge her criminally. 

The doctrine of absolute immunity, however, is not without limits. 

Prosecutors and other government officials are not entitled to immunity for

administrative and investigative actions that may have influenced the decision to

file criminal charges. See Hartman, 126 S. Ct. at 1704–05 & n.8 (noting a

defendant may proceed in a retaliatory prosecution action against an official “who

may have influenced the prosecutorial decision but did not himself make it, and

the cause of action will not be strictly for retaliatory prosecution, but for

successful retaliatory inducement to prosecute”). 

14
(...continued) 14

initiate criminal proceedings. Pierce, 359 F.3d at 1292.

 The Supreme Court issued Hartman after briefing took place in this 15

case, so neither the parties nor the district court had the opportunity to directly

address the absence of probable cause in the retaliatory prosecution context either

in proceedings below or before this court. 

-41-

To establish a § 1983 retaliation claim against non-immune officials,

Becker must plead and prove (1) that she was engaged in a constitutionally

protected activity; (2) that a defendant’s action caused her to suffer an injury that

would chill a person of ordinary firmness from continuing to engage in that

activity; and (3) that a defendant’s action was substantially motivated as a

response to her exercise of her First Amendment speech rights. Worrell v. Henry,

219 F.3d 1197, 1212 (10th Cir. 2000). She also must plead and prove the absence

of probable cause for the prosecution. Hartman, 126 S. Ct. at 1707.15

We believe the record on appeal presents a possible inference of retaliatory

action. To survive summary judgment on the retaliation claim, Becker must

present a genuine issue of material fact as to whether a non-immune defendant

influenced the decision to prosecute in retaliation for protected speech. Viewing

the facts in the light most favorable to Becker, we can infer the following from

the record: (1) in November and December of 1999, Becker began speaking out

about MFCU by filing a Notice of Claim against the state and writing to state

lawmakers; (2) Becker’s speech was part of a larger political debate around the

same time that resulted in management changes at MFCU: in December 1999,
 In the second order granting summary judgement to Kroll and Wright on 16

malicious prosecution, the district court noted that “Dr. Becker has created factual

disputes as to whether defendants Kroll and Wright deliberately supplied

misleading information that resulted in Dr. Becker being charged and prosecuted. 

(continued...)

-42-

Gardner became the MFCU lead prosecutor and sometime thereafter, the state

legislature transferred oversight of MFCU from the Department of Public Safety

to the Attorney General’s office; (3) some defendants stated at their depositions

that they were aware of the public criticism and at some point were aware of

Becker’s planned litigation against the state; (4) while Gardner was reviewing

Becker’s case, he discussed the investigation with some defendants; (5) these

defendants may have withheld information about the investigation from Gardner;

(6) as a result, Gardner did not have complete information about the Becker

investigation before he made the decision to file charges; and (7) if Gardner had

complete information, he would not have filed criminal charges in January 2000.

If Becker has established a genuine issue of material fact as to the points

above against defendants not entitled to immunity, her retaliation claim may be

able to proceed to a jury. See, e.g., Meyer v. Bd. of County Comm’rs of Harper

County, 482 F.3d 1232, 1244 (10th Cir. 2007) (“The crucial point, of course, is

that it is for the jury to decide what inference to draw.”); Piercy v. Maketa, 480

F.3d 1192, 1198 (10th Cir. 2007). The district court’s summary judgment order

did not discuss Becker’s theory of retaliation by non-immune defendants who may

have induced the prosecution by withholding key evidence from Gardner.16
(...continued) 16

The same holds true with respect to whether Mr. Kroll and Mr. Wright suppressed

exculpatory evidence that resulted in Dr. Becker’s continuing prosecution.” Aplt.

App. 46. But it never applied these findings to Becker’s retaliation claims.

-43-

Neither did it address the role particular defendants played in influencing

Gardner’s decision. 

We therefore remand the retaliation claim to the district court for further

consideration on summary judgment. 

C. State Libel Claim

Finally, in a pendent state law claim Becker argues that Gardner and Evans

committed libel by publishing untrue statements about her case on the MFCU

website, which was available to the public. We conclude that Becker has

established sufficient evidence for a jury to consider her libel claim. 

In brief, the MFCU website detailed MFCU activities, including cases,

dispositions, and general news. Becker’s case was reported under a category

called “Fraud Cases-Dismissals,” on January 12, 2001, well after MFCU had

dismissed all of its charges against her. The MFCU report included the following

passage:

Taj Becker, M.D. This neurologist was charged with one Second

Degree Felony count of False Claims for Medical Benefits. The case

stemmed from Utah MFCU investigation which uncovered

widespread [] upcoding. Patient records obtained from the doctor’s

office failed to substantiate corresponding services had been

provided to justify the upcoded bills submitted to Medicaid. Fraud

estimate approximated $17,000. Following the Preliminary Hearing

(PH) in this case, the defendant was bound over for trial as charged,
 Section 63-30-4 was repealed in July 2004. It has been replaced by Utah 17

Code Ann. § 63-30d-202. The differences between the two statutes are minor. 

Because § 63-30-4 was the law in effect at the time of the alleged libel, we refer

to it.

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but significant problems were disclosed during the PH, including key

meetings with the defendant which had not been documented, and

referral of the case to a neurologist expert, also not documented. 

Because of political pressure which had been brought on the MFCU

as a result of this case and several others involving rural doctors,

the case was dismissed with prejudice, and referred to the Utah

Department of Health for civil or administrative recovery of the

overpaid Medicaid funds.

Aplt. App. 161 (emphasis added).

Becker alleges that this published statement about her case is libelous under

Utah state law. To state a claim for defamation in Utah, a plaintiff must show

“[1] that defendants published the statements concerning him [either in print or by

spoken words], [2] that the statements were false, defamatory, and not subject to

any privilege, [3] that the statements were published with the requisite degree of

fault, and [4] that their publication resulted in damage.” West v. Thomson

Newspapers, 872 P.2d 999, 1007–08 (Utah 1994); see also Wayment v. Clear

Channel Broad., Inc., 116 P.3d 271, 278 (Utah 2005) (applying these elements). 

In addition, libel claims against state officials must show that the defendants

“acted or failed to act through fraud or malice” in order to waive sovereign

immunity. Utah Code Ann. § 63-30-4(3)(b)(I).17

Under Utah law, the libel plaintiff must prove “malice” to establish the

requisite degree of fault for the third element of Thomson Newspapers. The
 Becker also argues she is entitled to the “fraud” exception in § 63-30- 18

4(3)(b)(I). She has never articulated, however, how she meets the elements of a

fraud claim against Gardner and Evans. See Gold Standard, Inc. v. Getty Oil Co.,

915 P.2d 1060, 1066–67 (Utah 1996) (laying out nine essential elements to prove

fraud). Thus, the district court properly held that a fraud theory to support the

libel claim was not pleaded with the requisite particularity under Fed. R. Civ. P.

9(b).

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district court dismissed Becker’s libel claim because she “failed to produce

evidence sufficient to support a finding of fraud or malice in the publication [by

Gardner or Evans] of the report on the Internet.” Becker v. Kroll, 340 F. Supp. 18

2d at 1239. The district court defined malice as requiring a showing of “ill will

or spite,” citing Murphree v. US Bank of Utah, 282 F. Supp. 2d 1294, 1297 (D.

Utah 2003). The Utah Supreme Court has provided a more expansive definition:

Under the common law standard of malice, to overcome a conditional

privilege [such as that provided by the Utah Governmental Immunity

Act], a plaintiff must show ‘an improper motive such as a desire to do

harm or that the defendant did not honestly believe his statements to be

true or that the publication was excessive.’

Russell v. Thomson Newspapers, 842 P.2d 896, 904 (Utah 1992) (quoting

Seegmiller v. KSL, Inc., 626 P.2d 968, 975 (Utah 1981)). In our view, Becker has

shown sufficient evidence of malice to survive summary judgment.

The record supports an inference of malice under the Thomson Newspapers

standard. At the time MFCU dropped its case against Becker in September 2000,

Gardner had determined that evidence of Becker’s innocence had possibly been

withheld from him. By the time the case summary was published in January

2001, moreover, both civil and criminal claims had been dismissed for over five
-46-

months. Gardner and Evans thus had concluded well before the publication on

the website that the charges were unprosecutable, among other things, due to

problems associated with the subpoena, missing notes of alleged meetings, and

the failure to disclose material exculpatory evidence. And Becker later prevailed

in an administrative hearing on the billing allegations. 

Despite these facts, the Internet publication uses loaded jargon such as

“political pressure” to imply that Becker was guilty as charged, and that dismissal

was not based on the merits of the charges. To compound the implication, the

publication tells the reader that Becker’s case had been referred to another state

agency for collection of “overpaid Medicaid funds,” a clear statement that Becker

had committed fraud against the state and was let off the hook for other reasons. 

While Gardner argues he subjectively believed Becker was a law-breaker at

the time of the report’s publication, a reasonable jury could conclude that both

Gardner and Evans could not have reasonably believed the statements were true. 

The defendants will be able to provide evidence of their subjective belief at trial,

but at the stage of summary judgment, enough evidence of malice exists to merit

consideration by the jury. 

Gardner and Evans also argue that their involvement in the case summary is

immune under Utah law. Under Utah’s libel law, a report required by state or

federal law is immune from suits for libel or slander if made “in the proper

discharge of an official duty” or “by a fair and true report, without malice, of a
 We DENY Becker’s Motion for Permission to Supplement the Record 19

dated November 10, 2005.

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judicial, legislative or other public official proceeding.” Utah Code Ann. § 45-2-

3(1) and (4). Evans and Gardner claim the privilege from suit because the

MFCU annual report is a publication required by the federal government as part

of Utah’s participation in the Medicaid program. While the statute will provide

an immunity from suit for “fair and true” reports, it expressly provides the same

state-of-mind exception as the governmental immunity statute—malice. 

In sum, the district court erred in dismissing Becker’s state law libel claim

against Gardner and Evans for failure to present evidence of malice. 

IV. Conclusion

For the foregoing reasons, we AFFIRM the district court’s dismissal of

Becker’s Fourth and Fourteenth Amendment claims under 42 U.S.C. § 1983 and

REVERSE the court’s dismissal of Becker’s First Amendment retaliation and

related conspiracy claims. We also REVERSE the dismissal of the state law libel

claim against defendants/appellees Gardner and Evans. We therefore REMAND

the retaliation and conspiracy claims and the state law claim to the district court

for further proceedings consistent with this opinion. 

19