60 F.4th 1304
10th Cir.2023Background
- In March 2015 Walter Shrum’s wife suffered a medical emergency and died; police secured Shrum’s home, prevented his reentry for ~12 hours, and later obtained a consent form and photos that revealed ammunition.
- County, city, and federal officers obtained a search warrant, discovered firearms, ammunition, and methamphetamine; Shrum was arrested and spent several days in custody and later indicted federally for being a felon in possession.
- Shrum moved to suppress; the district court denied suppression, he entered a conditional guilty plea reserving appeal, and the Tenth Circuit reversed the suppression ruling (finding the extended seizure unconstitutional); the government then dismissed the prosecution.
- Shrum sued state and federal officers and municipal employers under 42 U.S.C. § 1983 (search, seizure, false arrest, and malicious prosecution) and state tort claims; the district court dismissed the § 1983 search/seizure/false arrest claims as time-barred and dismissed the malicious prosecution claim for failure to plead "favorable termination" under then‑controlling Tenth Circuit law.
- On appeal, Shrum argued equitable tolling (to avoid a Hobson’s choice between civil litigation and criminal defense) and that the malicious prosecution dismissal misapplied the favorable‑termination requirement; the panel affirmed dismissal of the statutory‑limitation claims (no plain‑error tolling) and, although recognizing Supreme Court intervening law changed the favorable‑termination rule, affirmed dismissal of malicious prosecution on alternative grounds (insufficiently specific pleading and failure to allege lack of probable cause).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court should have equitably tolled the § 1983 statute of limitations for unlawful search/seizure/false arrest claims | Shrum: tolling required because pursuing the civil suit while criminal charges were pending would force him to choose between vindicating Fourth Amendment rights and the Fifth Amendment right against self‑incrimination | Defendants: no basis for tolling; plaintiff forfeited the specific tolling theory below; concurrent litigation is not an extraordinary circumstance | No plain error; tolling denied under Kansas law and federal constitutional argument (Simmons inapplicable) — dismissal affirmed |
| Whether the criminal prosecution terminated in plaintiff’s favor for malicious prosecution purposes | Shrum: dismissal of criminal charges after appellate suppression is a favorable termination | Defendants: under then‑Tenth Circuit precedent a dismissal alone is insufficient; termination must indicate innocence | District court erred under subsequent Supreme Court precedent (Thompson v. Clark) but appellate court affirmed on other grounds (see below) |
| Whether complaint pleaded malicious prosecution with required specificity (who did what) | Shrum: complaint names officers and alleges unlawful search and prosecution | Defendants: allegations are undifferentiated, group pleading fails to connect specific actors to instigating/continuing the prosecution | Held for defendants: complaint lacks specific factual allegations linking each defendant to the malicious‑prosecution elements; dismissal affirmed |
| Whether plaintiff adequately pleaded absence of probable cause for prosecution | Shrum: prosecution lacked probable cause because it relied on illegally obtained evidence | Defendants: plaintiff made only conclusory recitals; exclusionary‑rule exclusion does not necessarily negate probable cause without factual allegations | Held for defendants: plaintiff’s conclusory assertions fail under Iqbal/Twombly; dismissal proper |
Key Cases Cited
- United States v. Shrum, 908 F.3d 1219 (10th Cir. 2018) (appellate reversal of suppression ruling—extended seizure unconstitutional)
- Thompson v. Clark, 142 S. Ct. 1332 (2022) (favorable termination for § 1983 malicious prosecution satisfied when prosecution ends without a conviction)
- Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008) (elements of § 1983 malicious prosecution; prior Tenth Circuit rule required termination indicate innocence)
- Wallace v. Kato, 549 U.S. 384 (2007) (concurrent civil/criminal litigation is common; district courts may stay civil actions pending criminal proceedings)
- Simmons v. United States, 390 U.S. 377 (1968) (one constitutional right should not have to be surrendered to assert another—limited applicability)
- McGautha v. California, 402 U.S. 183 (1971) (narrowing/limiting Simmons rationale)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard—conclusory allegations insufficient)
- Restivo v. Hessemann, 846 F.3d 547 (2d Cir. 2017) (discussion on whether exclusionary‑rule suppression retroactively negates probable cause in malicious prosecution claims)