Nhia Kao Vang v. Steven Decker

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NHIA KAO VANG, et al.,
Plaintiffs - Appellants,
v.
STEVEN DECKER, et al.,
Defendants - Appellees
No. 13-16272
D.C. No. 2:12-cv-01226-MCE-AC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted May 14, 2015
San Francisco, California
Before: PAEZ and CLIFTON, Circuit Judges, and DUFFY, District Judge. **
Plaintiffs-Appellants (“Plaintiffs”) are three Hmong married couples. The
men (“Vang Plaintiffs”) were charged with violating the Neutrality Act and other
FILED
JUN 12 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
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offenses in connection with an alleged conspiracy to illegally procure and transfer
military grade weapons to support a coup in Laos. Plaintiffs allege (1) civil rights
violations pursuant to 42 U.S.C. § 1983; (2) constitutional claims pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971); (3) common law claims pursuant to the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–80; and (4) claims for declaratory and
injunctive relief as a result of damages suffered during the government’s
prosecution of the Vang Plaintiffs in United States v. Harrison Jack, et al., 2:07-cr-
00266-KJM (E.D. Cal.). We have jurisdiction pursuant to 28 U.S.C. § 1291.
Our focus here is Plaintiffs’ malicious prosecution claims. We review de
novo the dismissal of these claims under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. See Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir.
2011). “To prove a [FTCA] claim of malicious prosecution in California, the
plaintiff must prove that the underlying prosecution: ‘(1) was commenced by or at
the direction of the defendant and was pursued to a legal termination in his,
plaintiff’s, favor; (2) was brought without probable cause; and (3) was initiated
with malice.’” Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2006)
(quoting Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498, 501 (Cal. 1989)); see
also Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (identical in
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the § 1983 context); Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (applying the
same standard in the Bivens context, save for the replacement of a state actor with a
federal actor). The entire action must terminate in a plaintiff’s favor in order for a
plaintiff to maintain a claim for malicious prosecution. Crowley v. Katleman, 881
P.2d 1083, 1094 (Cal. 1994). The district court concluded that Plaintiffs had not
met their burden of showing that the prosecution terminated in their favor. Our
precedent forecloses the district court’s conclusion.
In order for a plaintiff to prove that the prosecution terminated in his favor,
he “must generally establish that the prior proceedings terminated in such a manner
as to indicate his innocence.” Awabdy, 368 F.3d at 1068 (citations omitted). “[A]
dismissal in the interests of justice satisfies this requirement if it reflects the
opinion of the prosecuting party or the court that the action lacked merit or would
result in a decision in favor of the defendant.” Id. Further,
[w]hen such a dismissal is procured as the result of a motion by the
prosecutor and there are allegations that the prior proceedings were
instituted as the result of fraudulent conduct, a malicious prosecution
plaintiff is not precluded from maintaining his action unless the
defendants can establish that the charges were withdrawn on the basis
of a compromise among the parties or for a cause that was not
inconsistent with his guilt.
Id. (emphasis added).
Plaintiffs’ complaint plainly alleged misconduct in the underlying criminal
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matter, namely, that Defendant Decker lied to prosecutors and the grand jury. The
district court in that case dismissed a number of the counts in the indictment for
failing to put the Vang Plaintiffs on notice of the charges against them. Thereafter,
instead of refiling the dismissed counts in an amended or superseding indictment,
the United States filed a motion—that the district court granted—to dismiss the
surviving charges “in the interests of justice.”
The allegations of misconduct and the subsequent motion of the United
States to dismiss the prosecution in the interests of justice shifted the burden to the
Defendants to show that the proceedings did not terminate as a result of Plaintiffs’
innocence. See id. Defendants cannot simply hide behind the phrase “in the
interests of justice” to prevent Plaintiffs from pursuing their malicious prosecution
claims. Because the district court did not shift the burden to Defendants, we
reverse the district court’s judgment on the malicious prosecution claims brought
against the United States under the FTCA, and against Defendant Decker pursuant
to Bivens, and remand for further proceedings on those claims.
We affirm the district court’s judgment dismissing Plaintiffs’ other claims
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for the same reasons
stated in the district court’s otherwise well-reasoned orders.
AFFIRMED in part, REVERSED in part, and REMANDED. The parties
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shall bear their own costs on appeal.
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