Ronnie Harris v. United States

supplemented, has been record Once reconsider wheth- court should

the district enhancement sentence

er a sixteen-level is warranted. See crime of violence

for a determination, making this

id. In bound longer no be

court will It nonetheless consider must

Guidelines. category and sen- applicable offense the Guidelines and our range under

tence

caselaw, clearly state rea- and should its ultimately assess- for the sentence

sons

es.

III. CONCLUSION

Accordingly, Bonilla’s sen- we VACATE con- resentencing and REMAND for

tence this opinion.

sistent with REMANDED.

VACATED and Plaintiff-Appellant, HARRIS,

Ronnie America,

UNITED STATES of

Defendant-Appellee.

No. 04-3520. Appeals,

United States Court

Sixth Circuit.

Argued: 2005. June Sept.

Decided and Filed: 2005. SUTTON,

Before: CLAY and Circuit OBERDORFER, Judges; Judge.* District SUTTON, J., opinion delivered the D.J., court, OBERDORFER, in which joined. 337-40),

CLAY, (pp. J. delivered a separate opinion concurring part dissenting part.

OPINION SUTTON, Judge. Circuit statutory law Federal and constitutional law citizens to private offer two avenues damages recover for torts constitutional by employees committed of the federal A government. may sue em- directly ployee for the constitutional viola- tion under Bivens v. Six Unknown Named Narcotics, Agents Bureau Federal 29 L.Ed.2d 619 U.S. S.Ct. (1971). a plaintiff may gov- And sue the under Tort ernment the Federal Claims (FTCA), Act on the condition that “judgment in an ... shall [FTCA] action constitute a bar to action complete claimant, by reason of the same sub- matter, ject employee government gave whose act or omission rise the claim.” 28 2676. U.S.C. case, In this Ronnie Harris attempted use both court dis- avenues. district missed Harris’s Bivens claims on statute- grounds. of-limitations And after a bench Golanski, trial, Brooklyn, rejected ARGUED: Alani the district Harris’s Buck, York, New for H. claims on the Appellant. Lynne FTCA merits. Because fairly Attorney, Assistant Cleve- reasonable factfinder could conclude United States land, Ohio, Appellee. ON BRIEF: that Harris has to show that for failed York, Golanski, Brooklyn, Alani for or mali- New individual defendants assaulted Buck, law, ciously Appellant. Lynne prosecuted H. Lori him under Ohio we White Laisure, Attorney, rejection Har- affirm the district court’s Assistant United States Cleveland, Ohio, And ad- Appellee. ris’s FTCA claims. because that * Oberdorfer, lumbia, sitting by designation. The Honorable Louis F. United Judge Co- States District for the District of (and judication O’Bryant eventually merits of file. Caprez) Harris’s FTCA fol- adjudication claims bars further of Har- baggage lowed Harris to the claim area. ris’s Bivens claims against the individual O’Bryant approached Harris outside the defendants, we also affirm the court’s dis- and, airport himself, identifying after the Bivens claims. missal speak asked him. Harris declined to speak O’Bryant, with two men I. away walked from each During other. Harris, resident, Ronnie encounter, Caprez brief eye made contact boxer, Olympic professional former re- approach Harris but did not him or garded middleweights as one the best overhear the conversation. Harris re- produced. the State has ever His terminal; O’Bryant mained outside the boxing gold career included a medal Caprez and returned airport. to the Har- and Olympics Sugar victories over ris airport then returned to the without his Ray champion future world Seales and (which uncle, briefcase he had left with his Alan Minter. arrived), who had now walked 18, 1997, January On Harris arrived at baggage American claim Airlines carousel Hopkins Airport Cleveland on Continental and glanced green at a piece luggage. Lauderdale, 237 from Flight Airlines Fort this, Upon observing for O’Bryant called a Florida, he had traveled watch where to dog to sniff the bag. daughter compete in a his tennis tourna- joined At point, Caprez Harrison ment. He a jogging wore suit and tennis and began to observe Harris’s actions. shoes and a briefcase but no carried wore and, bag Harris retrieved his having overcoat. guessed Caprez agent, was a DEA agents plain Several federal clothes— approached him and said something like: Harrison, Henry O’Bryant, Raphael Debra “I appreciate you your monkeys don’t and Caprez and work- James Gilchrist —were you following keep up rip me and if I’ll ing January at the on airport and one your Harrison, head off.” JA 130-31. primary their duties was to scan the comment, up who overheard the walked to for airport suspicious persons activity. and behind, tapped Harris from his shoulder Drug Agency Because the Enforcement just and asked he had threatened whether (DEA) has designated Fort Lauderdale as police a officer. Harris asked Harrison city” drug Caprez a “source trafficking, was; responded who she she that she was O’Bryant and passengers monitored the 371; officer, a “police” and Harris JA they Flight exited the aircraft. chest, pushed prompting her Harri- Upon leaving plane, Harris walked son to arrest him. rapidly to claim baggage area and immediately airport nearby went outside the to As the officers led to the Harris uncle, office, look DEA picking up. they for his who was him force “could him task feel O’Bryant get Harris wore and resisting trying noticed because he a loose.” JA 131. briefcase; office, yet suit jogging they carried be- Once inside the handcuffed him carrying O’Bryant cause he not to a room was overcoat chair. entered the despite temperature; sought the cold and because basic identification information through airport he from rapidly generally walked Harris. Harris was not looking cooperative during questioning. while around —all of which Gilchrist O’Bryant, a 22-year drug-sniffing law enforcement vet- also entered the room with eran, drug dog. dog with a pro- growled during associated courier few times room, in defending minutes that in the al defendants itself he was

the few dog might claims. The individual defendants feared that FTCA Harris [him],” also 502. Harris filed motions to dismiss the Bivens biting JA then “start (a (because body they reference “bladed” his claims for untimeliness were apparently sideways, “aggressive” incidents), assuming years two filed over after officers), told the toward the “fight process stance” service and lack insufficient Harri- that he was “fast” and told jurisdiction. responded officers personal Harris could Statute, “what he that she did know son Ohio Rev. Savings 132-33, 436-37. 2305.19, [her].” done to JA gave year have him one from Code he had left Harris disclosed where After decision the date of Sixth Circuit’s briefcase, it and O’Bryant recovered his file the lawsuit. The officers no contraband. discovered 23, 2002, October the district court On station, police then took as the substituted United States sole aggravated they charged him with claims, for the defendant FTCA dis- conduct, as- resisting arrest and disorderly all missed the Bivens claims four grand An Ohio police on a officer. sault they individual defendants had charge the assault

jury indicted year filed over one after the district been 4, found jury 1997. And a later on March dismissal On court’s decision. December guilty charge. him not 16, 2002, Harris filed a second amended incidents, Harris of these On the basis against complaint, solely time the the individu a Bivens lawsuit filed claims United which asserted 13, January 1998. al task force officers on assault, arrest, prosecution, malicious false moved the lawsuit The officers to dismiss imprisonment, battery and abuse false a motion grounds process, on of defective process, all under FTCA. After a the without granted the district court trial, bench the district court ruled favor 26, ap prejudice on October 1999. of the United States on Harris’s FTCA Circuit, that dismissal the Sixth pealed claims. 26, 2001. See and we affirmed on March Cleveland, Fed.Appx. City Hards v. II. (6th Cir.2001). appeal, argues On Harris first the 22, (over year March after the On rejected court mistakenly district his complaint district court the but dismissed claims on FTCA the merits. FTCA year less than a this court’s affir- after “waives, limitations, certain [the fed- mance), complaint filed a new government’s] governmental immunity eral against the individual federal defendants to suit in tort and suits on tort permits Act and under the Federal Tort Claims brought against claims to be the United Bivens. Harris the district invoked 1400, Rep. Cong., States.” S. 79th 2d jurisdiction court’s under 28 U.S.C. (1946). FTCA, Sess. Under 2675(a), noting § had filed an that he generally States is liable for United May claim with FTCA the DEA employees acts of its “in the same manner that, agency had private same and to the extent as indi- failed to act on claim within six circumstances,” like vidual under U.S.C. months, presumed the claim denied. was § liable which means that 28, 2002, May payment money damages On filed according the United States a notice law of the the act place of substitution under 28 U.S.C. to the occurred, § law replace typically which allows it to individu- omission state actually law in this instance. Before tors Corp., 53 Ohio St.3d 559 N.E.2d (1990). 732, 736 invoking remedy, the FTCA a claimant present must the claim the federal Much like federal constitutional agency gave whose activities rise to the law, Ohio defines probable cause as “a injuries agency opportu- and allow the ground reasonable of suspicion, supported nity § to settle the claim. 28 U.S.C. 2675. by sufficiently circumstances strong If claim agency denies the or takes no themselves to warrant a man in cautious (as here), action the United States did the belief that person accused is guilty may bring claimant suit in federal district of the offense with charged,” which he is (as here). Harris did See U.S.C. Barbera, Rogers 170 Ohio St. 2675(a). FTCA lawsuits are tried in (1960), N.E.2d not as quantum jury. federal district court without a See of evidence criminal necessary convict 2402. U.S.C. see, defendant, e.g., Deoma v. Shaker Heights, 68 Ohio App.3d 587 N.E.2d In addressing the dismissal of Harris’s (1990). “[tjhere claims, Because is no FTCA the district court’s factual requirement that the defendant a mali [to findings “shall not be set aside unless cious-prosecution charge] must have evi erroneous, clearly regard and due shall be conviction,” id., dence that will ensure a given opportunity to the of the trial court every prosecution failed criminal will judge credibility of the wit sustain subsequent malicious-prosecution 52(a); nesses.” Fed.R.Civ.P. Anderson v. suit, see, O’Neill, e.g., Huber v. 564, 572, 105 City, Bessemer 470 U.S. S.Ct. (1981). 10, 11-12 St.2d “An (1985); Hogan 84 L.Ed.2d 518 indictment,” moreover, prima “is evi (6th 778, United 407 F.3d 781 Cir. facie probable dence of plaintiff cause and a 2005) (noting findings that fact and credi bring must forward substantial evidence to bility setting determinations in this are this,” Davisson, rebut Carlton v. 104 Ohio deference). great entitled to 636, App.3d 1112, 662 N.E.2d 1121 (1995) example, by showing that “the —for A. return of the per indictment resulted from argues that the four federal jured testimony or grand jury that agents maliciously charged him with as proceedings significantly were otherwise sault, resisting aggravated arrest and dis Deoma, irregular,” 587 N.E.2d at 428. orderly disagree. conduct. We law, Under Ohio malice “the is English Like the common law that state of person mind under which a inten it, preceded long Ohio law has recognized tionally wrongful does a act without a rea in right to recover tort for the misuse sonable lawful excuse and with the intent See, of civil and criminal e.g., actions. to inflict injury or under circumstances Pollock, 367, Pope v. 21 46 Ohio St. N.E. that imply the law will an evil intent.” (1889). 356 prove To a malicious-criminal- Springfield Criss v. Township, 56 Ohio prosecution law, (1990). 82, claim under Ohio a plain 440, St.3d 443 “For (1) tiff must govern demonstrate that the purposes prosecution, of malicious [the ment officials instituted or continued crimi improper any means an purpose, term] (2) malice, nal proceedings they that purpose other than the legitimate interest (3) probable lacked cause and bringing justice.” an offender to Id. proceedings were then terminated in “may favor Malice inferred from be the absence of the accused. See Trussell v. probable appropriate Gen. Mo- cause” in circum- 328 Hotel, Inc.,

stances, charge against 119 the Harris in v. Clarion assault state Garza indictment, 695 obtaining N.E.2d 813 after Ohio (1997), “the want of probable “prima which establishes evidence facie Carlton, gist cause,” of the probable cause real 662 [malicious- is the N.E.2d at action,” Judy, Melanowski v. prosecution] by Harris has not tried rebut (1921). N.E. showing grand jury proceedings St. that the (or indictment) any aspect other satisfy these re has failed were And cases irregular. interpreting matter, initial As an the dis quirements. analogous Ohio law in circumstances con- court, role as in this trict in its factfinder firm that probable the officers had cause trial, to infer from malice bench declined knowingly to believe that Harris attempt- specifi in this case actions officers’ ed to harm physical pushing cause Offi- cally “there is no noted that evidence See, e.g., cer Palshook Harrison. v. Jar- proceedings were instituted with mal (N.D.Ohio rett, F.Supp.2d ice,” finding that fatal to JA 138—a Xenia, 2000); City Stillwell v. No.2000- maliciously that he was Harris’s claims CA-41, *4, WL Ohio See, e.g., prosecuted. Williams Cam App. at *11-12 Ct.App. LEXIS (6th Educ., bridge Bd. of Feb.16, 2001) (noting that “evidence exist- Cir.2004) (rejecting plaintiffs ma Ohio-law support ed to a criminal assault charge” claim licious-prosecution plaintiff when under Ohio law when “intended to any allege “failed facts that demon and did strike [the officer] the chest acted with malice to strate[d defendant] hands”); with both Dep’t Matlock Ohio commencing prosecu ward him in [the] Control, Liquor 77 Ohio Misc.2d tion”); County Summit Coker v. Sheriff’s (1996) 771, 773, N.E.2d (holding that Dep’t, Fed.Appx. Cir. “plaintiff prove by preponderance did not 2003) (rejecting malicious-prosecution [for of the evidence that her arrest assault complaint claim because the “failed to set under was unlawful or 2903.13] that her support forth of a showing facts prosecution, was malicious” malice”). when she behind,” “grabbed from officer] [the ignore But if were to even we the dis- “pushed away,” officer and [her] she then findings trict court’s factual this score shirt”); “grabbed Hop- officer’s] [the cf. were to even if we consider Harris’s Westland, (6th kins v. 21 F.3d City 427 malice presume invitation to under these 1994) 4, Apr. (holding, Cir. in a non-Ohio- circumstances, Harris has not established case, probable law cause existed another of Ohio’s malicious- key element police shoved officer in the prosecution lack probable claim—the chest). the three cause—for counts with charged. which he was In attempting escape to the reach of First, cases, factfinder principally a reasonable could fair- these relies on ly that the officers probable conclude had the observation that Officer Harrison did charge safety cause Harris with not fear during to criminal as- for her own sault Ohio encounter under Revised Code and on a trio of cases—Watkins 2903.13(a), Sch., § proscribes “knowingly F.Supp.2d v. which Millennium 290 890 (S.D.Ohio 2003), Co., to causfing] attempt[ing] physical cause v. or Smith John Deere 398, harm Ohio App.3d to another.” Rev.Code 83 Ohio 614 N.E.2d 1148 (1993), Weber, H-98-005, § 2903.13(a); also Ohio v. No. see Rev.Code and State 2901.22(b). 700676, prosecutors brought App. 1998 State WL 1998 Ohio LEXIS

329 1998) (Ohio 9, Ct.App. 4822 Oct. deal and confrontational threatening state- —that proving with the standard for the civil tort ments and gestures satisfy require- — of assault under Ohio law. But these ment, despite the lack of an “actual strug- cases and Harrison’s frame of Officer mind 131; gle.” JA see Hansen v. Westerville prosecution do not advance a malicious Dist., City Educ., Sch. Bd. Nos. 93- assault, claim for criminal where the rele- 3231/93-3303, at*6, 1994 WL 622153 1994 assaulter’s, vant mental is state not the (6th 31576, U.S.App. LEXIS at *15 Cir. unavailing victim’s. Also is Harris’s reli- 1994) 7, Nov. (holding that plaintiff had Weber, ance on cases—such as v. State No. failed to show officers probable lacked H-98-005, 700676, 1998 WL 1998 Ohio cause to arrest and prosecute him for re- (Ohio App. 9, Ct.App. LEXIS 4822 Oct. sisting law, arrest under Ohio when he 1998), CA2001-12-104, Kelly, No. State “pulled his arm away officer], from [the 31414931, 2002 2002 App. WL Ohio LEXIS me,’ told him ‘get your paws off (Ohio 28, 2002), 5738 Ct.App. Oct. and In struggled officers”); with the arresting see M., E-99-028/E-99-046, Mark re Nos. Palshook, also F.Supp.2d at 651. 125800, 2000 WL 2000 Ohio App. LEXIS Making contrary position Harris’s more (Ohio 2000) Ct.App. per- Feb. —that tenuous, appellate Ohio upheld courts have tain to culpability Harris’s and the stan- jury required prove dard criminal verdicts convicting assault criminal defen- trial, a criminal required not the standard dants of resisting arrest in circumstances probable establish cause arrest an not far different from these. See State v. individual for criminal Lyons assault. See Keegan, App.3d Ohio 588 N.E.2d Xenia, City (1990) (holding “physical ac- Cir.2005) that, (recognizing ascertain- “[i]n tivity prevents delays arrest,” which or ing whether constitutional violation oc- including “going limp,” enough is to sus- curred, question is whether [the tain a resisting conviction for arrest under probable had officer] cause—not whether law); Thomas, Ohio State v. No. the evidence would support be sufficient to 1995 WL App. Ohio LEXIS conviction”). officers, short, had 1995) Ct.App. Feb. (raising probable cause to arrest Harris and to sufficient); one’s backing away fists and charge him with criminal assault. Rose, State v. App.3d Second, probable the officers had cause (1991) N.E.2d (moving arm to charge Harris with resisting arrest un- twenty thirty or seconds to avoid handcuff- Code, der 2921.33 of the Ohio Revised sufficient); Williams, ing is State v. proscribes force, which “recklessly resisting] interfering] [ ] or with a lawful (1992); Bird, 6836, State v. No. CA person arrest of the or another.” Ohio (Ohio 13173, App. Ohio LEXIS at *7 Ct. § Rev.Code 2921.33. already As we have 1981) 8, App. (noting, Jan. in the course of held lawfully that the officers arrested holding that unwillingness defendant’s to Harris, question the sole is whether the resisting be handcuffed amounted to ar- probable officers had cause to believe that rest, “passive, that indirect or circuitous recklessly he or resisted interfered with impediments to the exercise of the official that A arrest. reasonable factfinder could sufficient). police duties of a officer” can be conclude that Harris’s actions—his un- That such factual attitude, sup- circumstances have cooperative attempts to “resist[] loose,” ported try[] get resisting and to a conviction for unwillingness to arrest accompany the officers to the DEA office under necessarily Ohio law establishes that officers, they at- court found that the as charge cause to probable had the officers arrest, tempted place to Harris under resisting arrest. with Harris resisting trying get him and “could feel probable had cause officers Lastly, the precedent, 131. Under Ohio loose.” JA disorderly conduct. Harris with charge support a those actions are sufficient to law, engages dis- person Under Ohio charge finding probable cause “recklessly cause[s] if he orderly conduct Thomas, resisting arrest. See with inconvenience, or alarm to an- annoyance, 397; 39402, App. 1995 Ohio LEXIS WL “[e]ngaging things, other by, among other” Rose, 384; Bird, 600 N.E.2d at 1981 Ohio threatening persons harm to in fighting, 13173,at *7. App. LEXIS by “[ijnsulting, taunting, or property,” or another, under circum- challenging B. likely conduct is in which that stances foui argues Harris next response.” Ohio Rev. a violent provoke agents committed assault and bat federal 2917.11(A); Rev. § see also Ohio Code tery course of his detention at during the 2917.11(E)(3) (making aggravat- § Code airport. again disagree We disorderly conduct to violate the section ed other reasonable factfinder could conclude any law enforcement “in presence wise. officer”). reasonably could A factfinder Harris, threatening provides conclude that Like other Ohio by mak- violence and physical officers with of action for assault and civil-law causes provided them threatening gestures, assault as “the ing battery. The State defines necessary probable cause to attempt with the to harm or touch willful threat or conduct, see, disorderly offensively, him with threat or charge [where that] another Johnson, 74375, No. e.g., reasonably places v. other in fear attempt Fields *3, Meimaris, App. 1998 Ohio LEXIS at v. WL 827610 of such contact.” Stokes (Ohio 1998) 25, Ct.App. Nov. App.3d at *8 675 N.E.2d Ohio (coarse, grossly Co., threatening (1996); abusive Morgan Vandiver v. Adhesive probable cause to language App.3d establishes 710 N.E.2d 126 Ohio (1998). disorderly conduct injury charge physical individual Proof of is not 2917.11), the least because battery § not required. under Id. The State defines past have in the sustained actions with an similar an intentional uninvited contact see, 2917.11, Turk, e.g., State Snyder convictions under other. See Shumaker, (1993); 1994 WL 47676 at No. 627 N.E.2d Clinton, *14 *5, App. LEXIS City Love v. Port 37 Ohio St.3d 1994) (loud (1988). 166, 167 Ct.App. Feb. may suffice to sustain a language abusive totality of the circumstances does The 2917.11). under conviction argument Harris’s support battery. assault or certainly agents and can under- committed recognize We contact was the shoulder- dissenting colleague’s physical view that stand our hand-holding handcuffing, all tapping, of this case indicate the unfortunate facts may lawfully do suspected agents of which when agents wrongly an individual. Leichtman v. drug arresting courier. Yet we cannot acting of as a Communications, Inc., 92 agree colleague’s with our statement WLW Jacor 232, 697, 634 N.E.2d 699 physical activity pre- which Ohio “no evidence of (1994). found that in the The district court also delays present or arrest is vents had failed to demonstrate his own instant at 15. The district Harris case.” Infra

331 Finally, of apprehension govern implied reasonable fear. rules that damages ac tions). rejected Hutchison, McSurely the district court Harris’s asser- See v. 823 (6th 1002, Cir.1987); F.2d dog tions that the interaction with the 1005 see also 1329, DEA task force office amounted an Sanchez v. United 49 F.3d (8th Cir.1995); 1330 battery or Industrial assault because the district Construc Corp. tors v. United States Bureau Rec testimony court did not believe Harris’s of lamation, (10th 963, 15 F.3d 968-69 Cir. regarding these events. 1994); Lawn, 406, Van Strum v. 940 F.2d aptly notes that the district court (9th Cir.1991); Bieneman v. City of incorrectly proof described his burden of 463, Chicago, 864 F.2d 469-70 Cir. “beyond a reasonable at doubt” one 1988); Bowen, 21, v. Chin 833 F.2d 23-24 point, also but admits the court men (2d Cir.1987). length Not tioned proof pre the correct burden as “a period, “closely limitations but also related ponderance of the evidence” two times questions tolling application,” thus very 135-36; same section. JA Mat Garcia, “governed by are state law.” lock, record, 665 N.E.2d at 775. On this 269, 1938; U.S. at 105 S.Ct. Johnson v. single the district court’s to a reference Inc., Ry. Express 454, Agency, 421 U.S. “beyond a reasonable doubt” standard was 464, 1716, (1975); 95 S.Ct. 44 L.Ed.2d 295 harmless. Straub, 536, 544, Hardin v. 490 U.S. cf. (1989). 109 S.Ct. 104 L.Ed.2d 582 III. Among tolling provisions in argues Harris next limitations, terrelated with the statute of district court in dismissing erred his Bi held, we have is the Savings Statute. untimely. vens claims as Under the land Canton, See v. mark 1971 Supreme Court decision of that (6th Cir.1984). provides: The statute name, private may money citizens “recover In any commenced, action that ... if is damages any injuries [they suf have] plaintiff upon fails otherwise than agents’s] fered as result of federal [a merits, ... com- violation of the [Constitution].” U.S. year mence a new action within one 91 S.Ct. 1999. In addressing the ... plaintiffs after failure otherwise of a federal constitutional dam timeliness than upon peri- the merits or within the action, ages practice “the settled has been original applicable od of the statute of adopt a local time limitation as federal latey. limitations, whichever occurs if it law is not inconsistent with federal law Garcia, policy § to do so.” Savings Wilson 471 Ohio Rev.Code 2305.19. The 261, 266-67, U.S. applies 105 S.Ct. “an action timely Statute (1985). practice applies L.Ed.2d That commenced and is then dismissed without (because § both to 1983 actions “Congress prejudice after the statute of applicable Connor, did establish a statute of limitations or limitations has run.” Lewis v. body tolling (1985); applicable rules to actions Ohio St.3d 487 N.E.2d brought 1983,” Bizmart, Inc., § in federal court under Int’l Periodical Distribs. Regents Bd. the Univ. the State 95 Ohio St.3d 768 N.E.2d Tomanio, 478, 483, (2002); Lou, Inc., New York v. 446 U.S. Chadwick v. Barba (1980)) (1982). 100 S.Ct. 64 L.Ed.2d 440 and Ohio St.2d (because “plaintiffs Bivens actions the federal A gen- failure” under 2305.19 list, any erally Constitution does not more than appellate occurs when an court af- does, 1983 statute the timeliness firms a district court’s dismissal of a case 332 conclusion, reaching contrary In upon the merits.” See than

“otherwise Kohli, 121, Savings held district court Statute No. 02 CA 2003 v. WL Clones began run once the district court dis- *1, App. LEXIS at Ohio prejudice, Harris’s without missed action 26, (Ohio 2003); 3153, Ct.App. at June *3-4 the Sixth when Circuit affirmed Schiappa, Ins. Co. v. Nos. Van-American upon But this rests a mis- decision. view 97-JE-42/97-JE-46, 260904, at 1999 WL Builders, Kopf reading taken of Gruber v. 1976, *4, App. LEXIS at *10 Ohio Inc., 305, App.3d 147 Ohio 770 N.E.2d 598 (Ohio 29, 1999) (savings pro- Ct.App. Apr. Gruber, (2001). voluntarily In the plaintiff on of commences run date vision 1, complaint April dismissed his first on dismissal order because appellate court’s 1998, adjudi- the trial court continued but ap- would be force hold otherwise “[t]o case, cating ultimately granting sum- losing risk the benefit of the pellants to mary judgment to defendant. id. each See savings appeal order to the trial statute plaintiff appealed at then this 600. decision”); v. Lynch, court’s McDermott decision, Appeals and the Ohio Court *3, at No. 1997 WL 253168 appeal ... trial “dismissed the because the (Ohio 2087, at *7 Ohio LEXIS Ct. App. subject-matter jurisdic- court did not have 1997); Hawkins, App. May Greene April voluntary tion ... after the *2, 93-27, No. CA 1993WL 544350 Id. filed a dismissal.” When 6417, at *5 Ohio LEXIS Ct. App. year complaint new than one after he more 1993); Batsch, App. Dec. LaBarbera voluntarily complaint, his first dismissed 214 N.E.2d 448-49 Ohio both the trial court and the Ohio Court (1966), other grounds, rev’d on Ohio Appeals voluntary held “a dismissal (1967); 106, 227 N.E.2d 55 Colello v. St.2d ... constitutes a failure than otherwise Bates, App. upon purview the merits within the of the (1950); v. New York 260-61 Burnett cf. statute,” distinguished prior id. at Co., 424, 435, R.R. 85 S.Ct. Cent. 380 U.S. stating period Ohio law that the limitation (1965) (“[T]he 1050, 13 L.Ed.2d 941 limita- during appeal is tolled of an pendency provision tion tolled until the state court “none of ... the cases involved dismissing order action becomes state dismissal,” plaintiffs voluntary id. at 602. running during final the time contrast, By involuntary when an dismiss- entry which an taken or the appeal be issue, al is at Ohio case law indicates that judgment appeal.”). of a final appel- “an action fails” on the date of the decision, if any, late from dismissal. precedents, In with these accordance Co., City Ry. Stine v. Kansas Terminal preserved Harris his adequately claim. Cf. (Mo.Ct.App.1978). S.W.2d original his claims within the filed two-year period. statute-of-limitations Ohio The individual to de defendants seek See Ohio Rev.Code 2305.10. When fend the district court’s decision on a sec district those with- court dismissed claims ond ground reading this law —that prejudice, unsuccessfully ap- out policy according conflicts with federal And Harris pealed that decision. refiled ly In making should not be followed. year one his claims within Sixth argument, point the defendants to Lewel Circuit’s affirmance the district court’s Morley, len v. Cir. prejudice. 1989), dismissal his without claims chose invoke not to tolling principles That and Ohio permitting timeline Illinois state law the service- of-process establish that Harris’s Bivens claims fall time to extended indefinite “be ly by attempts within Savings compass. Statute’s unsuccessful serve defen-

333 live outside Illinois” the pursued dants who individual be not if the United (cid:127) liable.”). bar, rule was at odds with Federal Rule of Civil States be statutory by No 4(m)’s contrast, requirement Procedure Rule that prohibits against suits gov- the plaintiff days the obtain service within 120 ernment following against suit or settle- “good cause.” Id. Attempting absent employee; scenario, ment with the in that suit, follow argue the individual defendants customary preclusion rules of and the here, too, permitted by extension terms of the govern settlement whether Savings Statute allows a an additional lawsuit be filed. See service-of-process circumvent the require- States, Branch v. United 979 F.2d But, instance, ments of Rule 4. (2d this no Cir.1992) 951 (looking to “local law to similar direct conflict between Ohio law effect, determine the to a successor policy governs and federal exists. Rule 4 against States, FTCA action the United process complaint service of after a has provided a release by government em- dismissal, been filed and before see Fed. States, ployee”); Friday v. United 239 4(m), R.Civ.P. not happens what after a (9th Cir.1957) (“[I]t F.2d 703-04 dismissal for lack of process. appro- The significant provides that the [FTCA] priate inquiry touchstone for the latter is particularity that a release of the United law, law, accordingly state not federal States releases the employee. The obvi- ground upholding this alternative ous inference from specific provision this rejected. district court’s decision must be is that a employ- release the tort feasor

ee employ- does release the tort feasor IV. er, the United least where rights against the United States are re- though Even in district court served.”); United States v. First Sec. claims, correctly dismissed Harris’s Bivens Utah, (10th Bank 208 F.2d we do not reinstate they them because are Cir.1953) (“Congress with meticulous care by adjudication barred the court’s of his provided recovery of a judgment judgment FTCA claims. The FTCA’s bar against government shall constitute provides that: any against bar to action employee judgment an action under section claim, negligence gave whose rise to the 1346(b) of this title shall [the FTCA] itself, satisfactory but for reasons complete any constitute a bar to action provide, directly indirectly, failed to claimant, by by reason the same against a satisfaction of a claim matter, subject against employee employee against should bar an action government act whose or omission government.”). gave rise to the claim. 2676; Courts, Circuit, § generally 28 U.S.C. see including United the Sixth have Gilman, 507, 509, States v. consistently U.S. read 2676 to bar a Bivens (1954) (“The against government S.Ct. 98 L.Ed. 898 Tort claim employee actions, liability “arising Claims Act does not touch the out of the same transac- tions, employees except respect: by in one or occurrences” as an FTCA claim. Pichardo, (6th judgment 28 U.S.C. 2676 it makes the Serra v. 786 F.2d against Cir.1986); Woods, complete the United States ‘a bar’ see also Arevalo v. (9th Cir.1987); action the claimant the F.2d Andrews Gee, employee.”); (D.S.C.1984); Wolf, F.Supp. Benbow v. Cir.1954) (“The 205 n. 4 Armstrong Vogel, F.Supp. Con (D.S.C.1977). gress apparent has the intention that Against backdrop, Har- ment, by then virtue of 2676 ... that the district Sec. dispute ris does not employee longer primarily was no answer on the merits of his “judgment” a entered claimant, to the was not answera able “aris[e] and that those claims claims FTCA —he (footnote all.”) omitted); at ble United actions, transactions, or out of the same 717, Lushbough, v. 200 F.2d 721 States Bivens claims. And he his occurrences” as (8th Cir.1952) (“The Court, having District applies dispute that 2676 does not judgment [plaintiff] a in favor of awarded well as FTCA claims Bivens claims as States, against in his action the United Congress that enacted though the even explicit provi in face of could not way knowing in had no this statute 1946 judgment against order [§ 2676] sions implied- cover the Bivens would in government employee] [the favor of [the in 1971. claim announced constitutional action.”); plaintiff] Popal in the same v. judgment that the argues instead States, *3, 1996 185731 at 1996 United WL has apply “where bar does (S.D.N.Y. U.S. Dist. LEXIS at *7 alleged his Bivens claims from the outset 1996) (“Having proceed elected to Apr. in the same lawsuit sought jury a trial against both the Government and indi action, where the alleging FTCA causes having judgment viduals and received erroneously claims have been dis- Bivens against on the issue of Government missed, bench trial of and where the later liability, plaintiffs cannot now choose to law tort causes of action plaintiffs common against continue their action the individual in defendant’s fa- judgment results in a at defendants and elect some later time 12. Reply Br. at We dis- vor.” Harris claims.”); between the FTCA and Bivens agree. Bocelato, F.Supp. v. 130 Satterwhite appli (E.D.N.C.1955) In with the consistent accordance (entering judgment 829 fifty judgment cation of the bar over “only against the United States” and not enactment, years we have held employee since its against the federal because of 2676); States, applies even when “the provision Hopper that the v. United (E.D.Tenn.1953) in together F.Supp. (holding the same suit claims were tried simultaneously.” that, judgment were entered was “awarded judgments [ ] States, a, 241; plaintiffs against the United no 786 F.2d at see Serr against Miller, 97-2342, judgment [the will be announced v. No. also Clifton government employee]”); Prechtl v. *2, U.S.App. LEXIS WL cf. States, F.Supp. United (7th Cir.1998); Rodriguez at *5-6 v. (W.D.N.Y.1949). (5th Cir.1989); Handy, F.2d (“The Arevalo, at 490 811 F.2d moment By making judgment” in “[t]he judgment against govern was entered claim the to a future FTCA bar Bivens ment, then virtue of section claim, the statute also fails to draw a dis- longer Woods was no answerable to Areva- against tinction between a decision for or damages.”); lo for Aetna Cas. & Sur. Co. government. Nothing the common States, v. United 570 F.2d interpretation “judgment” sug- of the word Cir.1978) (“[A] judgment against the Unit gests judgment that a of the favor Unit- automatically ed States would bar the en differently ed States be treated from try any contemporaneous subsequent or judgment against the United States. (7th ed.1999) judgment against government employ Dictionary [the Black’s Law See ees].”); (defining “judgment” Gilman United court’s final “[a] (9th Cir.1953) (“[T]he rights obligations moment determination of the case”). judgment parties in a And indeed against was entered the Govern- held—in generally judgment judgment courts have accordance even an adverse §of plain with the terms 2676—that part a small the amount as a bar operates FTCA even when claimed—bars himself from recovery judgment is adverse the claimant. See employees”). federal Aguilar Estate ex rel. Trentadue decision, true, of appeals One court it is (10th States, United F.3d 397 858 distinguished has between favorable and Cir.2005) (“[T]he § judgment bar in 2676 unfavorable in judgments applying merits plaintiffs bringing from Bivens precludes a § concluding an judg that FTCA subject claim regarding the same matter ment government in the did not favor of regardless of whether the final FTCA contemporaneous bar a Bivens action aris in judgment is rendered favor of a plaintiff ing from the same See events. Kreines v. Perrill, or the government.”); Farmer v. States, (9th United 959 F.2d 838 Cir. (10th (“It Cir.2001) is 963 1992); States, compare Gasho v. United 39 wholly [prior that Circuit irrelevant Tenth (9th Cir.1994) (noting F.3d 1437 that an judgment case addressed FTCA law] in holding narrowly “the Kreines was con against the United States while Farmer’s rejecting fined to its facts” plaintiffs’ case an FTCA favor judgment involves in argument that “Congress per intended to of the United Section makes States. 2676 mit a claimant to have second chance no distinction between favorable and unfa action”). losing after his In doing FTCA judgments simply vorable to ‘the refers —it so, Kreines “[t]he reasoned that text judgment in action an under section ambiguous on the question whether an 1346(b).’ Ind., ”); Inc. Bancorp Hoosier judgment to govern FTCA favorable the (7th Rasmussen, F.3d 184-85 ment a contemporaneous bars Bivens Cir.1996) (“There is no indication that judgment.” 959 F.2d at 838. But the Congress apply intended Section 2676 to “judgment” word does not have the ambi only to FTCA judgments.”); favorable guity that the Ninth Circuit ascribed to it. F.Supp.2d Freeze v. United judgment The statute refers to in “[t]he an (M.D.N.C.2004) (“[T]he 477, 481 court’s 1346(b) title”; action under section of this judgment pre on Plaintiffs FTCA claim says nothing prevailed in about who “the vents Plaintiff from action asserting an judgment” fact that statutory engen —a against defendant on a con [the] [ ] based certainty uncertainty rather ders than that claim.”); Bonner, stitutional Hallock v. cf. applies the bar to all “judgments,” whether (2d Cir.2004) (distin F.3d against government. for or the guishing between FTCA actions dismissed background any Nor is there principle subjective-matter-jurisdiction grounds, regarding judgment supports that ap- bars opposed grounds, implicit as to merits but party, the bar one plying when as ly § accepting that both reaches another, to opposed prevailed the first judgments to and in adverse favor the — judgment. Calling “judgment” the word U.S. -, granted, government), cert. rate, hardly ambiguous, leads to (2005); the 125 S.Ct. 162 L.Ed.2d 274 the Circuit conclusion Ninth em- Dept. Leaman v. Ohio Mental Retarda Disabilities, Why “judgment” is it that a & braced. bar Developmental tion Cir.1987) banc) (not (en apply only government F.2d should When ing, government while Ohio loses? loses the interpreting analogous case, that, argue one provision, judg- under “one who initial could statutory necessary prohibit is not pursues against his remedies ment bar dual point judgment— United States to the law of recoveries remedies sharply though plaintiffs allegations the risk of also curtail could already would recovery already sap would supported have double suit United pursue another plaintiffs FTCA”); incentive under the see also Areva States words, just it makes (“Unlike In other lo, Carlson, claim. F.2d at 490 in the when the apply the bar much sense now before case us the Arevalo government wins initial case. Better sued both United States under the submit, circumstances, we these under FTCA and the individual federal officer §of 2676 where it language follow Bivens.”)-, Rowe, under Sanchez (cid:127) us, is to which the conclusion leads (N.D.Tex.1986) F.Supp. n. 575-76 & victor in claim identity FTCA (“[TJhe holding an. does not Carlson alter of a bar that not delimit reach does plain meaning of 2676 because Carl applies “judgment[s].” all to son did not deal with the effect of a FTCA judgment plaintiffs power on a to Supreme continue does the Court’s decision Nor Green, a pursue remedy.”). to Bivens in 446 U.S. S.Ct. Carlson (1980), support a con- 64 L.Ed.2d statutory history Neither does the of Carlson, In the trary interpretation. position. 2676 advance Harris’s The availability Court refused to condition the predecessor statute read as follows: govern- of claim on the federal Bivens .a (a) Subject title, to of this provisions the sovereign immunity of ment’s waiver the United court for States district the FTCA. See at 100 S.Ct. through the id. plaintiff district wherein the is resident (holding plaintiffs, the ab- “[i]n wherein the or act or omission com- contrary a from Con- expression sence of plained occurred, of including the United gress, ... shall have an action under district States courts for the Territories against the as FTCA United States well possessions States, of United against action the individual offi- Bivens sitting jury, without a shall have exclu- to have consti- alleged infringed cials their jurisdiction hear, determine, sive to about our deci- rights”). Nothing tutional judgment any against render on claim however, sion, principle. conflicts with this States, money only, the United ac- “[cjonstitutional may Although rights cruing January on and after statute, by be extinguished any state or account of of damage property to or loss federal, this truism does not mean that [ ] injury or on account of or personal death potential alleged suits or suits for viola- by caused the negligent wrongful or act rights may compro- tions of such not be or omission of any employee Gov- Leaman, or mised waived.” scope ernment while acting within the (en banc). Nothing in prohib- Carlson his office or employment, under circum- its government the federal from condition- stances where the United if a ing sovereign immunity its waiver of on a private person, would be liable plaintiffs willingness pursue not to a con- loss, damage, claimant for such injury, remedy precisely stitutional —which in or death accordance with the law of what the terms 2676 do and which place explains rejected the act or omission oc- why argu- we a similar Serra, Subject curred. provisions ment in to the Serra. See 786 F.2d at title, the (reasoning case, that “the United shall be in instant unlike States liable Carlson, respect deals with of such the effect of a FTCA claims to the same claim- ants, manner, judgment plaintiffs on a power to continue and to same to pursue a Bivens remedy,” private not with the same extent as a individual un- availability remedy circumstances, of a “even except Bivens der like that the liable for ment on his FTCA claim “arising States shall not be out

United actions, puni- transactions, or for prior judgment, interest the same or occur- course, plaintiff may allowed in rences.” damages. tive Costs shall be Of still bring claimant to claim pursue all courts to the successful Bivens Carlson, if See judgment. the same extent as States 446 U.S. at United that such But private litigant, except having 100 S.Ct. 1468. were chosen fees, attorneys’ well, bring shall not include an FTCA claim as costs the statute provides “judgment that a action [that] (b) judgment in such action any ... a complete constitute^] bar to complete constitute a bar to shall action ... by against the claimant claimant, by reason of the action government employee of the whose act matter, subject the em- against same gave omission rise to the claim.” act or ployee the Government whose Mecke, Engle § 2676. See U.S.C. gave omission rise to the claim. (10th Cir.1994) (“A F.3d decision Legislative Reorganization Act government to sue the ... affects 79-601, No. 843-44 Pub.L. Stat. of a availability Bivens action added). (emphasis Relying § 410 on this Although federal officer. statute, version of Harris ar- earlier initially bring elect against his action that the re- gues judgment previously defendant, judgment either a the against liability to was the the United ferred United States under the FTCA constitutes that, by retaining phrase States any ‘a bar to complete by action claim- judgment” “any using judg- “the instead of ant.’”); Ting v. United or judgment,” Congress ment” “a did not Cir.1991) (“The n. change meaning this it altered the when imposes FTCA ... an election of reme- But the predecessor statute. text of the a plaintiff may dies. While maintain both using is at In statute best unclear. action, recovery FTCA and Bivens ... action,” an phrase judgment “the in such recovery the United States bars just easily Congress could have meant all employee.”); Leaman, against the cf. judgments as it could meant those have (en banc) (noting F.2d at 956 that “the in judgments which States “the United Federal Tort Claims Act ... claim- offers shall be liable.” they ants a better deal than would have Nor, lastly, do we that this hold- believe it “force[ ] without it” because does not injustice works an or ing on Harris other accept government’s claimant plaintiffs punch like him. equitable statutory but claimants a “afford[s] offer” argument Harris’s the fear comes from superior vindicating mechanism for their erroneously that district court dis- rights”). his Bivens that he missed claims and has never in court on day therefore had his V. those claims. But the fact of the matter is reasons, For we affirm. these that, even if the district court had not mistakenly barred Harris’s Bivens claims CLAY, Judge, concurring part in Circuit grounds, timeliness the outcome would dissenting part. in Fifty years been no have different: except consistent have I largely pre- majority opinion case law would concur in the entering respect cluded district court from a with to its discussion and resolu- judgment favorable to on his Bi- tion of Harris’ claim that he was malicious- arrest, con- upon entry judg- ly prosecuted resisting vens claims of merits for Dist.1996) (Ohio (citing App. The district court’s Part IIA. in tained 2921.33). courts have cause existed omo Rev. Code probable determination “physi- resisting prohibit arrest was statute to interpreted Harris with charge subjective delays the court’s activity prevents cal which supported findings, conclusions, by its factual Keegan, and not arrest.” State v. compelled opposite have App.

which should Dist. Presumably because 1990). Thus, determination. example, “going for while there erroneously determined force, court it the use of limp” does not involve charge Harris with cause to probable was resisting Impor- arrest. Id. can constitute arrest, failed to consider resisting includes tantly, opinion district court’s be inferred from malice could whether resisting no discussion of what constitutes I would vacate cause. probable absence It is unclear how the district arrest. judgment respect court’s the district appropriately have determined could prosecution of malicious claim to Harris’ support probable cause there was arrest, that issue and remand resisting resisting arrest without ever charge of to consider whether district court for the resisting ar- considering what constitutes grant- inferred and relief should be malice rest under Ohio law. ed. Indeed, factual find- the district court’s notes, pre in order to majority As the its conclusion that ings support do not claim prosecution malicious

vail on a to believe that probable cause there was Ohio, three ele must establish majority in- arrest. The Harris resisted 1) instituting or continu malice ments: court found that the sists that the district 2) probable lack of ing prosecution, resisting officers could “feel” 3) cause, prosecu of the termination away they arrested him. pull trying Trussell v. of the accused. tion in favor However, finding of the this was not the St.3d Corp., 53 Ohio Gen. Motors Rather, noted that simply the court court. (1990). (N.E.2d) I will N.E.2d they could the officers that “feel” testified requiring the second begin with element — that Har- resisting, but did not find Harris an absence of to demonstrate actually done so. J.A. at 131. The ris had view, because, my in probable cause— nothing is in also noted that “there wrong, went is the district court night notes from that indicate Caprez’s resisting arrest respect least with to the attempting to resist arrest.” Plaintiff was charge. Id. the facts Probable cause “exists when respect finding court’s actual with The that a cautious and circumstances are such “[although there was that to this issue in the individual would belief be warranted did not struggle, actual Plaintiff was no guilty of the person that accused is ac- willingly the officers or cooperate with charged.” with is offense which he or she to the task force office.” company them Cincinnati, App.3d Norwell v. 133 Ohio added). finding The that (emphasis Id. (1999) (citing 729 N.E.2d inconsistent struggle there no actual is was Hosp., 79 McFinley v. Bethesda Oak testimony they that with both the officers’ 936, 939 App.3d 607 N.E.2d away, and Dist.1992)). pulling could Harris with feel 1App. Ohio Revised Code majority’s assertion that there was resisting from prohibits person 2921.33 a activity pre- which physical evidence of “recklessly force.” State v. arrest or Hendren, delayed arrest. vented or found that Plaintiff questions” supported only by

The district court tine its cooperative arrest- was less than with the that finding “Plaintiff was reluctant to co- ing give officers: operate O’Bryant the information for which he asked.” The court also not have to flea attempted

While he found, however, O’Bryant [sic], did obtain ample evidence to demon- there is all of the requested information and that strate that did not accompany he never raised his voice. willingly. officers to the task force Further- more, Moreover, fully cooperate Harris’ failure to ample there is evidence to cooperate he after he in the demonstrate that did not occurred was task force office, when, being with when according findings the officers he was to the court, questions. asked the addi- already routine In the district he had been tion, there is evidence that Plaintiff if uncooperative Even an arrested. atti- body in a bladed his confrontational answering questions tude in could rise to manner he made and that confrontation- resisting the level of arrest under Ohio al to the officers while law, statements have could not resisted an task force office. had already arrest been effectuated. J.A. at 138. Finally, the district court’s reliance on

Examining each the actions com- “blading” body Harris’ of his is also una- court, plained district in- byof none As with vailing. fully Harris’ failure to “physical volves which activity force or a cooperate answering questions, this ac- arrest,” prevents delays or lan- use the already tion occurred after he had been guage Keegan. None involves interfer- office, arrested and was in task force ing resisting “recklessly or arrest supported and thus could not have by force,” to use the language Moreover, charge resisting arrest. ac- statute. cording the district court’s own descrip- tion, person body, their “[w]hen blades conclusory district court’s assertion they away person they turn from the are accompany Harris did the officers blading body against. their This is done “willingly” support to the task force cannot person body pres- with bladed a finding probable cause that he resisted target of a hit.” J.A. at ents less to 133. undoubtedly unhappy arrest. Harris was that a adopted The fact Harris defensive targeted, followed, at having been and de- perhaps that posture, out of fear he would by entirely tained the DEA when he was by agents, be one of cannot struck the be any drug-related activity, innocent of delayed recklessly have arrest said to his it appears findings from the district court’s byor force. that he that unhappiness communicated to agents, the his to but conduct did not rise emphasize I that the facts of would required the level of for a resistance very those by case are different from cited charge resisting of arrest under law. Ohio in its majority support the of view that a found, As the district court was no there factfinder could conclude that reasonable actual struggle. The fact that Harris did majority resisted As the arrest. not want him in merely puts to be arrested Hansen, notes, pulled away in arrestees, most company of other struggled officers and with from the them. resisting does not constitute arrest. Hansen, *6, at WL 622153 Similarly, Again, *15. in U.S.App. the district court’s conclusion LEXIS 31576 at contrast, that not cooperate Harris “did with the the district court this case being specifically struggle officers when was rou- found no he asked the that took Palshook, plaintiff flung the essence of claim for mali- In becomes place. arresting officer’s mal- prosecution handcuffs of cious for the reason that out at other officers. may and kicked be if probable hands ice inferred cause was Hotel, 651. F.Supp.2d present.”); at v. Clarion Garza Inc., 119 Ohio N.E.2d well, Keegan cites as but majority The (Ohio Dist.1997) (in App. 1 a claim for for, to its help position, is no this case of “[mjalice prosecution, may malicious be in- above, law Keegan interprets Ohio noted from of probable ferred the absence activity pre- which prohibit “physical cause”); John, Canton Provision Co. v. St. an arrest.” N.E.2d delays vents or App. ma- by cases cited 930. other Several Dist.1936) (“If App. probable want of However, jority evidence. involve similar may proven, legal cause is inference be activity pre- which physical no evidence that actuated proceedings drawn were arrest in the delays present vents or malice.”) I remand so would this case instant case. that district could consider view, my a cautious could In individual whether, given Harris’ that demonstration guilty of not have that Harris was believed probable charge was no cause to him there conduct, resisting based on this arrest arrest, resisting an inference of mal- charge probable there was no cause ice is warranted this case. Based on crime, satisfying Harris with that the sec- us, Harris appear the record before would requirement showing of malicious ond law-abiding citizen who im- be was parties stipulated that prosecution. trial, properly denied relief at at least as to resisting not convicted of ar- was prosecution the claim malicious for re- words, that final rest —in he met the other sisting arrest. requirement prosecution for malicious claim, prosecution was which is turn, then, favor. I

terminated in his

the first Harris demon- requirement: charge bringing

strate in the malice

against him. majority’s

Despite skepticism re-

garding presume Harris’ “invitation to malice,” long courts have and re- America, UNITED STATES malice peatedly be inferred held Plaintiff-Appellee, probable cause. In from absence words, probable other absence cause is PUCKETT, Martece Defendant- See, malice, under

evidence of Ohio law. Appellant. e.g., Judy, Melanowski 102 Ohio St. ¶ 1921) (Ohio (“In 360, Syllabus 1 131 N.E. No. 04-5988. prosecution, malicious

an action for of Appeals, United States Court gist want cause is probable Sixth Circuit. proven, legal action. If infer- such be ence proceedings be drawn Argued: May 2005. malice.”); were actuated Sikora Sept. Decided Filed: 2005. Gibbs, N.E.2d Dist.1999) (“Impor- App. tantly, the probable generally lack of cause

Case Details

Case Name: Ronnie Harris v. United States

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 2, 2005

Citation: 422 F.3d 322

Docket Number: 04-3520

Court Abbreviation: 6th Cir.