Ross Fratzke v. Montana Fish, Wildlife & Parks ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSS FRATZKE and DEBORA
FRATZKE, No. 16-35874
Plaintiffs-Appellants D.C. No. 9:14-cv-00274
v. MEMORANDUM*
MONTANA FISH, WILDLIFE, AND
PARKS; THOMAS CHIANELLI,
Game Warden; BARBARA HARRIS;
BRYON MILLER,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Submitted March 8, 2018**
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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Before: RAWLINSON and CHRISTEN, Circuit Judges, and FREUDENTHAL,***
Chief District Judge
A criminal prosecution of Ross and Debora Fratzke (“the Fratzkes”) for theft
by insurance fraud and game violations underlies this civil case. The criminal case
concluded with dismissal of the alleged game violations and a hung jury on the
alleged insurance fraud. After the criminal case concluded, the Fratzkes filed a
civil case, which the district court concluded against them by summary judgment.
The Fratzkes now appeal the district court’s grant of summary judgment
dismissing their § 1983 malicious prosecution claim against Game Warden
Thomas Chianelli (“Chianelli”) who investigated the alleged game violations, their
§ 1983 malicious prosecution claim against Defendant Barbara Harris who
prosecuted the underlying criminal case, and a state law malicious prosecution
claim against Byron Miller, a former employee who provided much of the
information against the Fratzkes. We have jurisdiction under 28 U.S.C. § 1291,
and we review de novo. Folkens v. Wyland Worldwide, LLC, 882 F.3d 768, 773
(9th Cir. 2018). We affirm.
A claim of malicious prosecution under §1983 requires pleading tortious
conduct by the defendant under the elements of a state law malicious prosecution
***
The Honorable Nancy D. Freudenthal, Chief United States District
Judge for the District of Wyoming, sitting by designation.
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claim, as well as alleging that the defendant acted under color of state law and for
the purpose of denying the plaintiff a specific constitutional right. Poppell v. City
of San Diego, 149 F.3d 951, 961 (9th Cir. 1998). For a malicious prosecution
action in Montana, “the plaintiff bears the burden of proving that (1) a judicial
proceeding was commenced against the plaintiff; (2) the defendant was responsible
for instigating, prosecuting, or continuing a judicial proceeding; (3) there was a
lack of probable cause for the defendant’s acts; (4) the defendant was actuated by
malice; (5) the judicial proceeding terminated favorably for the plaintiff; and (6)
the plaintiff suffered damage.” Spoja v. White, 317 P.3d 153, 156 (Mont. 2014)
(citations and internal quotation marks omitted).
1. The district court did not err by concluding that Chianelli simply
conducted the investigation required by state law, and passed the information along
to the Sanders County Attorney’s Office, who ultimately provided it to Harris.
“When a defendant acts upon a statutory duty and provides information to the
proper authorities, who then file criminal charges, that defendant is not liable for
‘instigating’ criminal proceedings.” White v. State ex rel. Mont. State Fund, 305
P.3d 795, 804 (Mont. 2013) (citation omitted). Moreover, the Fratzkes present no
evidence creating a genuine dispute that Chianelli acted with malice or an intent to
deprive them of a constitutional right. Thus, the district court properly concluded
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Chianelli did not “instigate” the criminal proceedings and granted summary
judgment.
2. The district court did not err in granting summary judgment against
the Fratzkes on their § 1983 claim against Harris. As prosecutor, Harris simply
received, selected and presented investigative information provided to her by
others, without vouching as to its truth. Harris’ affidavit expressly stated, “based
on information and belief, that investigative information developed and provided to
her by . . . [the] Deputy Sheriff, and Tom Chianelli, . . . demonstrates probable
cause to believe that [the Fratzkes] committed the offenses charged.” That conduct
alone does not convert Harris into a complaining witness.1 Thus, Harris is
protected by absolute immunity and the district court properly granted summary
judgment on the Fratzkes’ claim against Harris. See Kalina v. Fletcher, 522 U.S.
118, 129 (1997).
3. The district court did not err in granting summary judgment against
the Fratzkes on their state law claim for malicious prosecution against defendant
Miller. Miller provided information to investigators and the investigators listed
various steps taken to corroborate the information. Supplying information is
insufficient to find Miller instigated the criminal proceeding. Further, the state
1
These facts are distinguishable from those presented in Cruz v. Kauai County,
279 F.3d 1064 (9th Cir. 2002). The prosecutor in Cruz functioned as a witness
under the circumstances of the ex parte proceeding in that case. Id. at 1068.
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court denied the Fratzkes’ pretrial motion to dismiss the criminal charges based on
the lack of probable cause. Based on these undisputed facts, there are no issues
requiring adjudication at trial as to “instigation” or probable cause, and the district
court properly granted summary judgment as to the Fratzkes’ claim against Miller.
AFFIRMED.
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