Opposition Brief — Spear v. Town of West Hartford

No. 91-1867 QFAICE OF THE Ci_.a

IN THE

oo Court of the United States

Ocroser Term, 1991

JOHN M. SPEAR and SPEAR PRINTING CO., INC..,

Petitioners,

vs.

TOWN OF WEST HARTFORD,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Davip THomMas RYAN

Counsel of Record

Cuar.es D. GILL, Jr.

ROBINSON & COLE

One Commercial Plaza

Hartford, Connecticut 06103

(203) 275-8200

Attorneys for Respondent

as FILED

1992

t

al

QUESTIONS PRESENTED

Did the court of appeals err in holding that the Petitioners’

first amendment claim failed because the Petitioners’

allegations of constitutional deprivation were too con-

clusory and speculative to constitute a claim under 42

U.S.C. § 1983?

Did the court of appeals err in holding that liability under

42 U.S.C. § 1983 may not be predicated on a claim of

malicious abuse of process?

Did the court of appeals err in holding that the Town of

West Hartford’s actions did not so “shock the conscience”

as to violate the Petitioners’ rights to due process of law?

ear °° Yt. Ge ee

TABLE OF CONTENTS

QUESTIONS PRESENTED ...............__.

TABLE OF AUTHORITIES..............__.

I,

Il.

REASONS WHY THE PETITIONERS’

WRIT SHOULD BE DENIED..........___

A. THE SECOND CIRCUIT DID NOT

ERR IN HOLDING THAT THE

PETITIONERS’ FIRST AMENDMENT

CLAIM FAILED BECAUSE THE

PETITIONERS’ ALLEGATIONS OF

CONSTITUTIONAL DEPRIVATION

WERE TOO CONCLUSORY AND

_ SPECULATIVE TO SUPPORT A

. CAUSE OF ACTION UNDER

Wo accis,s,.,.,.......

THE SECOND CIRCUIT DID NOT

ERR IN HOLDING THAT LIABILITY

UNDER SECTION 1983 MAY NOT BE

PREDICATED ON A CLAIM OF

MALICIOUS ABUSE OF PROCESS ...

THE SECOND CIRCUIT DID NOT

ERR IN HOLDING THAT WEST

HARTFORD'S ACTIONS DID NOT SO

“SHOCK THE CONSCIENCE” AS TO

VIOLATE THE PETITIONERS’

RIGHTS TO DUE PROCESS OF LAW

ee 0s 155. oli w ss +e.

1]

TABLE OF AUTHORITIES

Cases

AGI-Bluff Manor, Inc. v. Reagen, 713 F. Supp.

Ree OPP BUD a vb asd Gina ee eeses'sa

Andree v. Ashland County, 818 F.2d 1306 (7th

NL IN esti dna ek anion ae hi nEe K aa o0

Baker v. McCollan, 443 U.S. 137 (1979) ........

Beker Phosphate Corp. v. Muirhead, 581 F.2d

oe re re ee

Carey v. Piphus, 435 U.S. 247 (1978) ...........

Coogan v. City of Wixom, 820 F.2d 170 (6th Cir.

PEPE EOE PO Te ee hee Peet rn

Givhan v. Western Line Consolidated School

District, 489 U.S. 410 (1979) ................

Gladstone, Realtors v. Village of Bellwood, 441

FR Fe Pe he ae

Glasson v. City of Louisville, 518 F.2d 899 (6th

Cir.), cert. denied, 423 U.S. 930 (1975) .......

Gordon v. Warren Consolidated Bd. of Educ.,

706 F.2d 778 (6th Cir. 1983) ................

Havas v. Thornton, 609 F.2d 372 (9th Cir. 1979)

Howard Gault Co. v. Texas Rural Legal Aid,

-Inc., 615 F. Supp. 916 (D. Tex. 1985), aff'd,

848 F.2d 544 (5th Cir. 1988) ................

Howard Gault Co. v. Texas Rural Legal Aid,

Inc., 848 F.2d 544 (5th Cir. 1988) ...........

vi

Page

Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert.

denied sub nom. Employee-Officer John v.

Johnson, 414 U.S. 1033 (1973) ............... 12

Laird v. Tatum, 408 U.S. 1, reh’g denied, 409

i: He Ss Bs os 6 Cat ceueeetieer ens 8

McMaster v. Cabinet for Human Resources, 824

Ag ll ere ren 10

Rochin v. California, 342 U.S. 165 (1952) ....... 12

Schlesinger v. Reservists Committee to Stop the

War, 418 U.S. GiB CBP oc ccc cnccscnccccss 8

Snyder v. Massachusetts, 291 U.S. 97 (1934) ..... 12

Spear v. Town of West Hartford, 954 F.2d 63 (2d

Se re rer br ere eee on 2,6

Spear v. Town of West Hartford, 771 F. Supp.

521 (D. Conn. 1991), aff'd, 954 F.2d 63 (2d

Pere re re ery pan 2,5

Tarkowski v. County of Lake, 775 F.2d 173 (7th

ET ere ere TT ee ee re 10

Town of West Hartford v. Operation Rescue, 726

F. Supp. 371 (D. Conn. 1989), vacated, 915

Fe Ot Gs Se be kid sivdaceskescccses 2,7

United Presbyterian Church In The U.S.A. v.

Reagan, 738 F.2d 1375 (D.C. Cir. 1984) ...... 8

Valley Forge Christian College v. Americans

-United for Separation of Church & State, Inc.,

gk Ee reer eee eee 8

ous” — a em

Page

Wade v. Goodwin, 843 F.2d 1150 (8th Cir.),

cert. denied, 488 U.S. 854 (1988) ............ 8

Warth v. Seldin, 422 U.S. 490 (1975) ........... 8

White v. Frank, 855 F.2d 956 (2d Cir. 1988) .... 9

CONSTITUTIONAL PROVISIONS:

EE, EE nici xe occcaeeevestsossceys 8

ie ee a SS errr eee ees ee passim

U.S. Const. amend. IV ............-4- soles 10

U.S. Const. amend. XIV ............---2- sees passim

STATUTES:

Se Ev ivnccceevedcdcnccrsersenses 3

Ss I cee Pek c ecto nse svccevcenesns passim

Sebati tn cman oan a. ee ee

No. 91-1867

oo ET a

IN THE

Supreme Court of the United States

Ocroser Term, 1991

JOHN M. SPEAR and SPEAR PRINTING CO., INC.,

Petitioners,

vs.

TOWN OF WEST HARTFORD,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

STATEMENT OF THE CASE

A. PROCEDURAL HISTORY

On August 22, 1990, the Petitioners, John M. Spear and Spear

Printing Co., Inc., brought suit under 42 U.S.C. § 1983 in the

United States District Court for the District of Connecticut

—

>.

West, Inc, (“Summit”), a private corporation located in West

Hartford.

Motions to dismiss the Petitioners’ action pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure were filed by

all of the defendants, and were granted by the District Court

in an opinion dated April 17, 1991. Judgment was entered for

the defendants on April 18, 1991. Spear v. Town of West Hart-

ford, 771 F. Supp. 521 (D. Conn. 1991).

The Petitioners appealed from that judgment to the United

States Court of Appeals for the Second Circuit. On January 13,

1992, the Second Circuit affirmed, in its entirety, the District

Court’s dismissal of the Petitioners’ action. On February 21, 1992,

the Second Circuit denied the Petitioners’ petition for rehear-

ing en banc. Spear v. Town of West Hartford, 954 F.2d 63 (2d

Cir. 1992). -

The Petitioners have now petitioned this Court for a writ of

certiorari, but only as to West Hartford.

B. STATEMENT OF FACTS

The Petitioners alleged the following facts in their complaint:

John M. Spear is the editor of the Orange County Post, a week-

ly newspaper published in Washingtonville, New York, by the

Spear Printing Company, Inc. On April 4, 1989, Spear wrote

and published an editorial entitled “Northern Rednecks” in

which he sharply criticized the actions of the West Hartford

Police Department in attempting to disband an anti-abortion

demonstration which took place in front of the Summit Women’s

Center in West Hartford, Connecticut on April 1, 1989. Com-

plaint ¢{ 5-6, 14-15 (Petitioners’ Appendix (“Pet. App.”) at

29a-30a, 32a).

On June 29, 1989, West Hartford filed a civil action in the

United States District Court for the District of Connecticut seek-

ing damages and seeking to prevent the demonstrators from in-

terfering with the operations of the Summit Women’s Center.

See Town of West Hartford v. Operation Rescue, 726 F. Supp.

371 (D. Conn. 1989).

West Hartford’s complaint named eighteen defendants, in-

cluding the Petitioners. In particular, West Hartford sought in-

junctive relief and asserted causes of action pursuant to Civil

RICO, 18 U.S.C. § 1961 et seq., and state tort law. West Hart-

ford also alleged a conspiracy to interfere with civil rights. Com-

plaint { 23 (Pet. App. at 33a-34a). In regard to the Petitioners,

West Hartford’s complaint alleged:

On or about Tuesday, April 4, 1989, the defendant

Spear Printing Co., Inc., through its editor, the defend-

ant John M. Spear, deliberately and maliciously

published an incorrect, defamatory account of the

April 1, 1989 protest based upon reports given to him

by the defendant Catherine A. Jersey, another em-

ployee of the defendant Spear Printing Co., Inc., who

was one of the protesters arrested by West Hartford

police on April 1, 1989 at the Summit Women’s Center,

in furtherance of the efforts of the defendants and

others to harass, intimidate and extort a less diligent

or softened response from the West Hartford Police

Department to future protest activities by the defend-

ants and others at the Summit Women’s Center and

elsewhere within the Town of West Hartford.

Complaint { 26 (Pet. App. at 34a-35a)

On September 22, 1989, Summit Women’s Center filed an

intervenor complaint, also naming the Petitioners. On December

6, 1989, West Hartford and Summit filed a joint amended com-

plaint from which the Petitioners were dropped as parties. Com-

plaint ¢ 48, 57 (Pet. App. at 39a, 40a-4la).

On August 22, 1990, the Petitioners instituted the present ac-

tion against the Town of West Hartford, Corporation Counsel

Wilder, Acting Town Manager McCue and the Summit Women’s

Center. The Petitioners alleged that their entire action was in

response to the “initiation by Defendants of unconstitutional

malicious, egregious and baseless wrongful civil proceedings.”

Complaint { 1 (Pet. App. at 28a).

In particular, the Petitioners alleged that West Hartford's in-

itiation of civil proceedings against them violated the first and

fourteenth amendments to the United States Constitution and

constituted vexatious litigation, libel and defamation. Complaint

{ 58-60, 69, 73 (Pet. App. at 4la, 42a-43a). The Petitioners al-

leged in Paragraph 58 that:

The said lawsuits instituted by the Town of West Hart-

ford and the Summit Women’s Center West, Inc.

caused John M. Spear fear, mental anguish and worry

over any potential legal liability particularly in view

of the allegations of criminal acts, criminal extortion

and criminal racketeering conspiracy, thereby caus-

ing a chilling effect upon his First Amendment rights

of the press and speech.

(Pet. App. at 4la). In Paragraph 62, the Petitioners alleged:

The said two lawsuits and the subsequent litigation

have damaged John M. Spear and Spear Printing Co.,

Inc. in that they have been deprived of their rights

of speech and of the press by the chilling effect of the

said RICO and Hobbs Act lawsuits and particularly

by their allegations of extortion, crimes and criminal

racketeering conspiracy.

(Pet. App. at 4la). In Paragraph 59, the Petitioners alleged:

The said action of the Defendants are [sic] so egregious

in nature that they shock the conscience, depriving

John M. Spear and Spear Printing Company, Inc. of

their rights to the due process of law under the Four-

teenth Amendment of the United States Constitution.

(Pet. App. at 4la).

Conspicuous! absent from the Petitioners’ twenty page com-

plaint, however, were any allegations of fact which might have

led one to conclude that any constitutional rights of the Peti-

tioners, either collectively or singularly, were taken away, in-

fringed upon or violated in any manner.

Se ee ee

On April 17, 1991, the District Court granted the defendants’

Motions to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure. Spear v. Town of West Hartford, 771 F. Supp.

521 (D. Conn. 1991) (Pet. App. at 12a-25a). Specifically, the

District Court held that both Corporation Counsel Wilder and

Acting Town Manager McCue were absolutely immune from

suit based upon their initiation of civil proceedings against the

Petitioners. (Pet. App. at 15a-18a).

The District Court also held that the Petitioners failed to state

a cause of action under 42 U.S.C. § 1983 against West Hartford

for deprivation of their first amendment rights. In particular,

the District Court stated that the Petitioners failed “to make

allegations that indicate[d] a deprivation of constitutional

rights,” as the “chilling effect alleged by the [Petitioners was]

speculative, indirect and remote.” (Pet. App. at 18a-20a).

In addition, the District Court held that the Petitioners fail-

ed to state a claim under section 1983 based on a violation of

substantive due process and malicious prosecution. The District

Court stated that “the defendants’ initiation of suit against the

[Petitioners] and the meeting between the Town’s attorneys, the

attorneys for Summit and Leisa Montgomery, a Summit ad-

ministrator, do not constitute conduct so egregious as to ‘shock

the conscience. ” (Pet. App. at 20a-2la).

The District Court also stated that the Petitioners failed to

state a section 1983 claim predicated on malicious prosecution,

because malicious prosecution can only support a section 1983

action if it is based upon the malicious initiation of a criminal

prosecution. The District Court correctly noted that the initia-

tion of civil proceedings cannot support a section 1983 action

for malicious prosecution. (Pet. App. at 2la-22a). Finally, the

District Court held that Summit was not a state actor, and

therefore was not subject to liability pursuant to section 1983.

(Pet. App. at 22a-24a).

The Petitioners then appealed from this judgment to the

United States Court of Appeals for the Second Circuit. On

January 13, 1992, the Second Circuit affirmed the District

a

Court’s dismissal of the Petitioners’ action as to all of the defend-

ants. Spear v. Town of West Hartford, 954 F.2d 63 (2d Cir. 1992)

(Pet. App. at la-Lla).

In particular, the Second Circuit agreed with the District

Court that Corporation Counsel Wilder and Acting Town

Manager McCue were absolutely immune from suit, and that

Summit was not a state actor and thus could not be sued under

section 1983. (Pet. App. at 5a-7a, 10a-Lla).

The Second Circuit also agreed with the District Court that

the Petitioners’ allegations of first amendment injury were too

conclusory and speculative to constitute a cause of action under

section 1983, and thus the Petitioners’ “naked assertion of a chill

[did] not suffice to defeat a Rule 12(b)(6) motion.” (Pet. App.

at 7a-9a).

Moreover, the Second Circuit agreed with the District Court

that section 1983 liability may not be predicated on a claim for

malicious abuse of process. As the Second Circuit noted, “[w hile

section 1983 liability may be predicated on a claim for malicious

prosecution . . . it may not be predicated on a claim for malicious

abuse of process.” (Pet. App. at 9a-10a)

Finally, the Second Circuit agreed with the District Court

that West Hartford’s actions of meeting with Summit and bring-

ing a civil suit against the Petitioners did not so “shock the con-

science” as to violate the Petitioners’ rights to due process of law.

(Pet. App. at 9a).

iat arctic tee Sans inact talk Senin satire

Il. REASONS WHY THE PETITIONERS’ WRIT SHOULD

BE DENIED.

A. THE SECOND CIRCUIT DID NOT ERR IN

HOLDING THAT THE PETITIONERS’ FIRST

AMENDMENT CLAIM FAILED BECAUSE THE

PETITIONERS’ ALLEGATIONS OF CONSTITU-

TIONAL DEPRIVATION WERE TOO CON-

CLUSORY AND SPECULATIVE TO SUPPORT A

CAUSE OF ACTION UNDER SECTION 1983.

The Petitioners claim that the Second Circuit erred in holding

that their allegations of first amendment injury were too con-

clusory and speculative to support a cause of action under sec-

tion 1983. The Second Circuit’s holding, however, was well-

supported by established constitutional doctrine and squarely

in accord with prior decisions of this Court.

The Petitioners claim that simply by filing its lawsuit, West

Hartford chilled their first amendment rights.’ Despite their

repeated allegations of a “chilling effect” and their claim of “fear,

mental anguish and worry,” the Petitioners’ complaint simply

gave no indication of how the Petitioners were inhibited from

the exercise of their constitutional rights. In the words of the

Second Circuit, “Spear’s naked assertion of a chill does not suf-

fice to defeat a Rule 12(b)(6) motion.” (Pet. App. at 8a).

The Second Circuit did not hold, as the Petitioners claim, that

a section 1983 plaintiff must allege “subsequent injury” to free

speech. Rather, the Second Circuit held merely that a plain-

tiffs allegations of constitutional injury must be sufficiently

specific to show that they are not merely conclusory, remote or

speculative. Faced with nothing more than the Petitioners’

their freedom of expression. This argument was rejected by both the District

Court and the Second Circuit. (Pet. App. at 8a-9a, 19a-20a).

repeated incantation of the words “chilling effect,” the Second

Circuit had no choice but to uphold the dismissal. Indeed, it

is hard to imagine an allegation more conclusory, speculative,

and more of a “naked assertion.” (Pet. App. at 7a-9a).

In Laird v. Tatum, 408 U.S. 1, reh’g denied, 409 U.S. 901

(1972), this Court recognized that “[a]llegations of a subjective

‘chill’ are not an adequate substitute for a claim of specific pre-

sent objective harm or a threat of specific future harm. . ..” 408

U.S. at 13-14 (emphasis added). Nor can the Petitioners’ perfunc-

tory allegations of mental anguish suffice to establish the “tangi-

ble consequences” required by Laird. Gordon v. Warren Con-

- solidated Bd. of Educ., 706 F.2d 778, 780 (6th Cir. 1983). “Sub-

jective fear. . .is insufficient to establish a [first [a]mendment

claim.” Id. at 781 (citation omitted). See also Wade v. Good-

win, 843 F.2d 1150, 1152 (8th Cir.), cert. denied, 488 U.S. 854

(1988) (“[S]peculative apprehensiveness as to future misuse of

information resulting in direct harm” is subjective chill only);

United Presbyterian Church In The U.S.A. v. Reagan, 738 F.2d

1375, 1378-80 (D.C. Cir. 1984) (Fear of illegal surveillance does

not constitute cognizable harm under first amendment and

therefore is not remediable).

Laird makes clear that if a court were to permit allegations

of “subjective chill” to constitute a cognizable claim, then the

court would eventually be forced to render an advisory opin-

ion in contravention of Article III of the United States Constitu-

tion. 408 U.S. at 14. Without specific allegations indicating a

constitutional deprivation, the Petitioners’ section 1983 com-

plaint failed to state a justiciable controversy under Article III.

“[{AJt an irreducible minimum, Art. III requires the party who

invokes the court’s authority to ‘show that he personally has suf-

fered some actual or threatened injury as a result of the putative-

ly illegal conduct of the defendant. ” Valley Forge Christian Col-

lege v. Americans United for Separation of Church ¢> State, Inc..,

454 U.S. 464, 472 (1982) (quoting Gladstone, Realtors v. Village

of Bellwood, 441 U.S. 91, 99 (1979)). See also Warth v. Seldin,

422 U.S. 490, 501 (1975) (Injury or threat must be “distinct and

palpable”); Schlesinger v. Reservists Committee to Stop the War,

418 U.S. 208, 221 (1974) (Injury or threat must be “concrete”).

The cases relied upon by the Petitioners simply do «0 ad-

dress the issue of whether a section 1983 complaint has been

pleaded with sufficient specificity. Moreover, each case involves

a plaintiff who suffered specific, demonstrable harm. See Giohan

v. Western Line Consolidated School District, 439 U.S. 410 (1979)

(Plaintiff lost her job in retaliation for her expression of opin-

ion); Carey v. Piphus, 435 U.S. 247 (1978) (Students suspended

from school without due process); Glasson v. City of Louisville,

518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930 (1975) (Plain-

tiff's protest sign seized and destroyed).

Because the Second Circuit’s holding was firmly based on

established constitutional law, this Court should not grant cer-

tiorari on this ground.

B. THESECOND CIRCUIT DID NOT ERR IN HOLD-

ING THAT LIABILITY UNDER SECTION 1983 MAY

NOT BE PREDICATED ON A CLAIM OF MALI-

CIOUS ABUSE OF PROCESS.

The Petitioners claim that the Second Circuit erred in holding

that liability under section 1983 may not be predicated on a

claim of malicious abuse of process, as opposed to malicious pros-

ecution. Yet, despite their assertion that there is a split among

the circuits on this issue, the Petitioners fail to cite a single case

holding that malicious abuse of process — vexatious initiation of

civil litigation — may serve as the basis of a section 1983 claim.

Because “Spear was subject only to civil, not criminal liability,”

the Second Circuit held:

any abuse would have been malicious abuse of pro-

cess rather than malicious prosecution. While section

1983 liability may be predicated on a claim for

malicious prosecution, e.g., White v. Frank, 855 F.2d

956, 961 n.5 (2d Cir. 1988), it may not be predicated

on a claim for malicious abuse of process. E.g., Havas

v. Thornton, 609 F.2d 372, 376 (9th Cir. 1979).

(Pet. App. at 9a-10a).

10

Nor is this holding a “novel” departure from established case

law, as the Petitioners claim. Indeed, “courts that have recognized

that malicious prosecution may support a section 1983 claim

are virtually unanimous in holding that constitutional protec-

tion exists only with respect to criminal proceedings and not

to civil proceedings.” McMaster v. Cabinet for Human Resources,

824 F.2d 518, 522 (6th Cir. 1987). See Coogan v. City of Wix-

om, 820 F.2d 170, 174-75 (6th Cir. 1987).

No case cited by the Petitioners holds otherwise. The Peti-

tioners cite Beker Phosphate Corp. v. Muirhead, 581 F.2d 1187

(Sth Cir. 1978), yet this case heid that the plaintiffs claim of

misuse of civil legal procedure could not be remedied under sec-

tion 1983. Id. at 1189. The Petitioners also rely on Tarkowski

v. County of Lake, 775 F.2d 173 (7th Cir. 1985); in that case,

however, the court explicitly refrained from ruling on whether

malicious abuse of process is actionable under section 1983, and

held only that the litigation in question was not baseless. Id.

at 174-75. In Andree v. Ashland County, 818 F.2d 1306 (7th Cir.

1987), also cited by the Petitioners, the court refused to provide

a remedy under section 1983, holding that “the mere unsuccessful

attempt to secure an injunction under an allegedly unconstitu-

tional ordinance does not itself make out a deprivation of con-

stitutional rights.” Id. at 1312.

Finally, the Petitioners’ reliance on Howard Gault Co. v. Texas

Rural Legal Aid, Inc., 848 F.2d 544 (5th Cir. 1988) is equally

misplaced. In fact, the trial court’s ruling in Howard Gault, left

intact after appeal, was that “[t]o the extent that [the claimant’s]

malicious prosecution claim is cognizable under §1983, [. . .],

he cannot prevail because the state court proceeding was civil,

not criminal.” 615 F. Supp. 916, 938 (D. Tex. 1985) (emphasis

added). The application of section 1983 to malicious prosecu-

tion claims, the district court held, rests “on the protections af-

forded criminal defendants by the Fourth and Fourteenth

Amendments, protections that do not extend to defendants in

civil suits even if the civil action is brought by persons acting

under color of state law.” 615 F. Supp. at 938 (citing Beker

Phosphate Corp. v. Muirhead, 581 F.2d 1187 (5th Cir. 1978)).

3

:

:

:

;

:

:

i

;

F

;

:

|

4

|

|

11

The district court in Howard Gault did provide relief to the

claimant under section 1983, but not on the claim of malicious

prosecution. Rather, the claimant was awarded $500 on the

separate claim that his first amendment rights were violated by

the issuance of an unconstitutional temporary restraining order.

The district court distinguished between the issuance of the un-

constitutional TRO, which provided the basis for a section 1983

claim, and the claim of malicious prosecution of civil litigation,

which did not. 615 F. Supp. at 938. The district court’s ruling

on the TRO was upheld by the Fifth Circuit, in the opinion cited

by the petitioner. 848 F.2d 544. The district court’s ruling on

the malicious prosecution claim, however, was apparently not

even raised on appeal, and was not addressed by the circuit court.

The Petitioners have failed to cite a single circuit, or even a

single case, holding that section 1983 liability may be predicated

on a claim of malicious abuse of process. It is well-established

in federal constitutional case law that only malicious

prosecution — involving criminal, not civil, litigation — may serve

as the basis of a section 1983 claim. Thus, this Court should not

grant certiorari on this ground.

C. THE SECOND CIRCUIT DID NOT ERR IN

HOLDING THAT WEST HARTFORD'S ACTIONS

DID NOT SO “SHOCK THE CONSCIENCE” AS TO

VIOLATE THE PETITIONERS’ RIGHTS TO DUE

PROCESS OF LAW.

The Petitioners claim that the Second Circuit erred in holding

that West Hartford’s actions did not so “shock the conscience”

as to violate the Petitioners’ fourteenth amendment rights to due

process. It is abundantly clear, however, that West Hartford’s

conduct did not even remotely approach the “shock the con-

science” standard.

“A substantive due process claim does not require that a

specific constitutional guarantee be violated; but it does require

that the actions alleged be such as to ‘shock the conscience, of-

fend the ‘concept of ordered liberty, or suggest ‘outrageousness.’

Baker v. McCollan, 443 U.S. 137, 147 [. . .] (1979) (Blackmun,

12

J., concurring). Unless the alleged conduct is so egregious as to

violate ‘a principle of justice so rooted in the conditions and con-

science of our people as to be ranked as fundamental, Snyder

v. Massachusetts, 291 U.S. 97, 105 [. . .] (1934), it does not violate

substantive due process and will not support a claim cognizable

under §1983. See Baker v. McCollan, 443 U.S. at 146-47 [. . .].”

AGI-Bluff Manor, Inc. v. Reagen, 713 F. Supp. 1535, 1544 (W.D.

Mo. 1989).

Conduct that has been found to “shock the conscience”

generally has been maliciously and sadistically aimed at

prisoners or detainees for the purpose of causing fear or harm.

See, e.g., Johnson v. Glick, 481 F.2d 1028, 1029-33 (2d Cir.),

cert. denied sub nom. Employee-Officer John v. Johnson, 414

U.S. 1033 (1973) (corrections officer struck and threatened to

kill pretrial detainee). Rochin v. California, 342 U.S. 165 (1952),

illustrates the application of this high threshold for substantive

due process claims. In Rochin, a criminal suspect placed some

capsules in his mouth during arrest. Police officers took him to

a hospital where the suspect was forced against his will to take

an emetic which caused him to vomit the capsules, which were

then found to contain narcotics. Id. at 166. This Court de-

nounced the conduct of “[iJllegally breaking into the privacy

of the petitioner, the struggle to open his mouth and remove

what was there, and the forcible extraction of his stomach’s con-

tents...” as shocking to the conscience. Id. at 172.

The outrageous actions of law enforcement personnel in the

aforementioned cases stand in sharp contrast to the events that

constitute the basis of the instant action. As the Second Circuit

correctly held, “[t]he district court reasonably concluded that

West Hartford’s actions in meeting with Summit and suing Spear

fell short of [the ‘shock the conscience’] standard.” (Pet. App.

at 9a). Thus, this Court should not grant certiorari on this basis.

13

Ill. CONCLUSION

For the several reasons already stated, the Petitioners’ peti-

tion for a writ of certiorari should be denied.

Respectfully submitted,

DAVID THOMAS RYAN

Counsel of Record

CHARLES D. GILL, JR.

Robinson & Cole

One Commercial Plaza

Hartford, CT 06103-3597

(203) 275-8200

Attorneys for Respondent

June 19, 1992